Category Archives: Vanie Employment

Federal Computer Fraud and Abuse Act Remedies Potentially Available to Hawaii Employers for Deleted Files

Hawaii employers could have a federal civil remedy available in federal court in addition to the ability to invoke Hawaii criminal statutory law for damage caused to either network or company-owned computers by former employees.

The federal Eastern District Court of Missouri recently issued a ruling that could broaden the remedies available to Hawaii employers for damage caused to computers by departing employees.

Specifically, in Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing, & Consulting, the Court interpreted the Computer Fraud and Abuse Act (“CFAA”) to permit a federal remedy for employers whose former employees delete and/or steal company information from laptop computers.

In that case, two managers left the plaintiff company and, according to the plaintiff, failed to return their laptop computers when requested and copied or downloaded confidential and trade secret information. The files on the computer containing such information were then deleted prior to the laptop computers being returned. The plaintiff filed a complaint alleging several causes of action, including a claim under CFAA.

The Court rejected the defendants’ argument in a motion to dismiss that the plaintiff was prohibited from asserting a claim under CFAA. The CFAA permits a cause of action for any person who suffers damage or loss by a violation of the act, so long as the damage sustained during a one-year period totals at least $5,000 in value.

The CFAA defines damage as “any impairment to the integrity or availability of data, a program, a system or information.” The CFAA defines loss as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”

The Court found that the plaintiff sufficiently alleged facts to satisfy both the “damage” and “loss” test. The Court found that the company sufficiently pled loss with its allegations that defendants deleted information, requiring forensic analysis and other remedial measures to retrieve and analyze defendants’ computers and restore the data. The Court’s ruling did not require, as other case law on the issue suggested, that the subject information must be destroyed on the employer’s network computer as opposed to a laptop computer.

The Court’s interpretation of CFAA is more in line with Hawaii criminal statutory law addressing criminal computer-related activity. For instance, HRS § 708-892 states that a person has committed the crime of “Computer Damage in the First Degree” where:

(a) The person knowingly causes the transmission of a program, information, code, or command, and thereby knowingly causes unauthorized damage to a computer, computer system, or computer network; or
(b) The person intentionally accesses a computer, computer system, or computer network without authorization and thereby knowingly causes damage.

Under the statute, the damage must: “Result in a loss aggregating at least $5,000 in value, including the costs associated with diagnosis, repair, replacement, or remediation, during any one-year period to one or more individuals.” Also, computer damage in the first degree is a class B felony.

The Hawaii penal code explicitly permits the conviction of a person that causes damage to not only a computer network, but also a company-issued computer. Generally, in most garden-variety cases where a former employee has been found to have deleted/destroyed computer files, the cost to engage a computer forensics professional to assess and restore or attempt to restore lost data will exceed $5,000 under the Hawaii criminal statute and CFAA.

Thus, a Hawaii employer could have a federal civil remedy available in federal court in addition to the ability to invoke Hawaii criminal statutory law for damage caused to either its network or company-owned computers.

Hawaii Employment Law Basics: Medical Examinations and Disability Law

Hawaii law and the Americans with Disabilities Act prohibit employers from discriminating against employees and applicants for employment who have disabilities. Physical examinations cannot be used to unfairly or disproportionately screen out disabled individuals. Employers may not require medical examinations of job applicants until after conditional offers of employment are made. Finally, medical examinations of current employees must be job related and consistent with business necessity.

Hawaii employers may require job applicants to undergo a physical examination as part of the hiring process. Employers may also have medical examination requirements for current employees. Whether imposed at the hiring stage or on the current workforce, employers’ physical or mental examination requirements are subject to significant restrictions under federal and state law.

Hawaii’s Employment Practices law and the Americans with Disabilities Act (“ADA”) prohibit employers from discriminating against employees and applicants for employment who have disabilities. As a result, physical examinations cannot be administered or used in a way that unfairly or disproportionately screens out or adversely affects the employment opportunities of disabled individuals. In the hopes of eliminating the unlawful consideration of disabilities in hiring, both Hawaii state and federal law stated that employers may not require medical examinations of job applicants until after conditional offers of employment are made. Employment may be conditioned on the results of the examination only if all entering employees in the same job category are subject to the same examination.

Medical examinations of current employees must be job related and consistent with business necessity. Such examinations must be limited in scope to the employee’s ability to perform specific and essential job functions, or to evaluate an employee’s disability or need for reasonable accommodation. The Hawaii Administrative Rules require the employer to provide the medical examiner with a written job description, including the essential job functions and the Hawaii state regulations defining “reasonable accommodation” and “direct threat.”

All information regarding the medical condition or history of an applicant or employee must be collected and maintained separately as confidential records. If the Company requires an employee to complete a medical examination, the Company should first obtain an authorization form compliant with HIPAA, which prohibits health care providers from releasing protected health information to employers except in limited circumstances.

Moreover, Hawaii law prohibits the release of test results of sexually-transmitted diseases (such as HIV/AIDS) for employment, educational, or housing purposes without the voluntary consent of the tested individual.

Tests for use of illegal drugs are not considered medical examinations.

Compensation and Benefits in Belgium: Limiting the Use of Golden Parachutes

This article outlines the state of affairs on the limitations that many politicians announced in the wake of the financial crisis on the use golden parachutes.

Golden parachutes are special protection measures given to top managers in the form of substantial additional dismissal premiums foreseen in the employment agreement (or management agreements). Although many politicians announced strict prohibitions on the use of such golden parachutes in the wake of the financial crisis, Belgian parliament still has not passed any form of new legislation on the subject and it does not look like it is likely to do so in the near future.

In the absence of any new legislation on the subject, existing golden parachutes remain valid and enforceable. Agreeing to new golden parachutes also remains possible although some exceptions might apply. Earlier this year, a new Corporate Governance Code for listed companies was presented. The new code is a revision of the 2004 code commonly known as the Code Lippens. One of the new principles of the code is that every new contract with top managers should include language on severance pay.

The code stipulates that top managers (the CEO or executive management members) should specify that severance pay awarded in the event of early termination should not exceed twelve months’ (basic and variable) remuneration. These twelve months may be raised to eighteen months upon recommendation by the remuneration committee. In this case the contract should specify when such higher severance pay will be due and the higher severance pay should be justified in the remuneration report which is published in the annual report. The code moreover stipulates that the contract should specify that the severance pay should neither exceed twelve months’ basic remuneration nor take account of variable remuneration when the departing top manager did not meet the performance criteria referred to in the contract.

Note that the Belgian Corporate Governance Code is not of mandatory application. It provides guidelines with which listed companies have to ‘comply or explain’. The impact of the code is therefore rather limited. To underscore the rather symbolic nature of these provisions, it can be noted that the code cannot limit the protection offered by Belgian employment law which can (easily) surpass the limitations set forth by the code. As usual, careful drafting of the employment (or management) agreement is the main message.

Mandatory Arbitration Agreements Unfairly Deny Employee Rights

It has become standard practice for employers to require that prospective employees sign a pre-employment agreement as a condition of accepting a job.

More often than not, the fine print in these agreements includes a mandatory arbitration clause, which requires the employee to give up any rights to bring a lawsuit against the employer for any wrong, including wrongful termination, discrimination or sexual harassment. Rather than file a lawsuit in court, the employee must agree to bring his or her claim against the employer before an arbitrator.

Limiting Perceived Constitutional Rights

Arbitration is a form of alternative dispute resolution. Each party presents its case and any evidence supporting its claim to an arbitrator or a panel of arbitrators. The arguments in favor of arbitration include the efficiency of the process and its lower costs.

However, unlike voluntary arbitration – in which the parties agree after a dispute has arisen to submit to arbitration rather than the courts – employees are forced to agree to submit any future dispute to arbitration. In many cases, if they don’t sign the agreement, they don’t get the job. The employer has all of the bargaining power and the employee’s only option is to agree to the employer’s terms.

Many times, employees are not even aware they have signed a contract that includes a mandatory arbitration clause. And those who do know what they signed rarely understand the full extent of rights they have forfeited by signing the agreement.

Mandatory arbitration agreements result in a loss of perceived constitutionally protected employee rights, including:

* The right to a jury trial. Under the Civil Rights Act of 1991, employees are entitled to have a jury hear their discrimination claims. In arbitration, there is no jury. The arbitrator acts in the role of judge and jury in deciding the case.
* The right to appeal. Arbitration decisions are binding, meaning final, and there are limited opportunities to appeal decisions.
* The right of access to the courts. Not just employees, but all individuals believe they have the right to have their legal claims heard in court. Mandatory arbitration provisions take this option off the table.
* Limited right to recover damages. Even in cases where the employee is successful and wins in arbitration, whether he or she can recover the full extent of damages available under the law can be limited by the arbitration agreement.

A Convenient Forum for Employers

There have been arguments made that arbitration is more favorable to employees because it gives them access to a less expensive forum than the courts, thus giving them a greater opportunity to have their grievances heard. But it is highly questionable whether the arbitrators sitting on employment arbitration panels are in fact the neutral decision-makers they are purported to be. The arbitrators and the choice of forum for the arbitration are selected by the employer. Thus, the arbitrators have an incentive to find in favor of the employers rather than the employees in order to ensure repeat business.

There are additional facts that make arbitration an unfair forum for wronged employees, including:

* Arbitrators do not have to follow the law. In Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349 (5th Cir. 2009), the Fifth Circuit ruled that courts do not have the authority to vacate an arbitrator’s decision, even if the arbitrator acted in “manifest disregard of the law.”
* Arbitrators do not have to issue written opinions explaining how they interpreted the law and applied it to the employee’s case.
* There is limited discovery in arbitration, which can fatally damage employees’ cases because they are not given the means to collect the necessary evidence to support their claims.
* Arbitration is a secretive forum, not open to the public and the arbitration agreement may require that the results be kept confidential.

As part of the arbitration agreement, employees may be required to pay all of the fees and costs of the arbitration if they lose. This can serve as a strong deterrent to employees who may be considering bringing cases against their employers, but are afraid of what will happen should they lose and be forced to pay the costs out of pocket.

Small Firm Management

According to the ABA: At large law firms, there are entire departments dedicated to many of the logistical and administrative aspects of running a law firm. These include managing office space, conducting conflict checks, overseeing HR matters, even making sure the coffee break room is stocked with half-and-half. As sole practitioners, attorneys are responsible for all of these activities, and many others

I have been trying to grow my practice. But if it is not one thing it is another. Big firms don’t seem to have the same problems.According to the ABA: At large law firms, there are entire departments dedicated to many of the logistical and administrative aspects of running a law firm. These include managing office space, conducting conflict checks, overseeing HR matters, even making sure the coffee break room is stocked with half-and-half. As sole practitioners, attorneys are responsible for all of these activities, and many others

In a nutshell, it’s an online university where law students and lawyers can learn a wide variety of topics related to running a successful solo law practice. There are courses, faculty, discussion groups, blogs, videos, comments, and lots more! (I am not a member)

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Rocket Matter, in Beta since November 2007, exemplifies our simple, imaginative, Software as a Service (SaaS) approach to developing a superior software experience. Rocket Matter provides increased security, business continuity, decreased technology infrastructure and maintenance, and improved ROI for IT expenses for solo and small firms.

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Virtual Paralegal/Virtual Legal Assistant Services, including

* Drafting pleadings, motions, affidavits and other court documents
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Virtual Assistants come from a variety of business backgrounds, but the single-most important qualifications to become a Virtual Assistant is at least five (5) years administrative experience earned in the real (non-virtual) business world working in secretary, legal assistant, paralegal, legal secretary, real estate assistant, office manager, etc.

Responding to a Negative Performance Evaluation

Employers often use performance evaluations to create pretext for terminating an employee. If you believe you have been subjected to illegal discrimination or harassment, filing a response can unmask the illegal conduct and, sometimes, prolong your employment.

A negative performance evaluation without any prior warning, notice or complaint can be shocking to an employee. This is especially true if the criticisms arise after you have experienced or reported discrimination or harassment.

Employers can use negative performance assessments as a means to put an employee on probation and/or terminate the employment relationship while avoiding

the costs of unemployment insurance or policy severance. While it may be difficult to rebut subjective feedback, a written response to a negative assessment is a means for an employee to identify accomplishments and document discrimination or harassment concerns.

Ignoring a negative evaluation leaves the subjective critiques in the employee’s personnel file with no documented evidence of rebuttal. At the same time, criticisms can evoke strong emotions and an employee should be careful to address the substance of the evaluation rather than engage in personal attacks. The employee should provide specific examples that refute pretextual criticisms and highlight the employee’s contributions.

If an employee is unsure about a supervisor’s motivation for negative feedback, the employee should also be cautious about making unsubstantiated claims of discrimination or harassment without speaking with an employment attorney.

California Wage and Hour Update

DLSE Approves Salary Reduction For Furloughed Exempt Workers

With the economy in flux, businesses are looking for ways to reduce payroll without losing talent. Some companies have put their hourly workers on a “work furlough” by reducing the number of hours or days in a weekly schedule. But can the same be done for salaried exempt workers? Normally, salaries cannot be adjusted based on the number of hours worked in a workweek.

The answer is yes, according the California’s Division of Labor Standards Enforcement (“DLSE”). Although the rules for salaried exempt workers are strict in California, in a recent opinion letter, the DLSE endorsed a salary reduction commensurate with a workweek reduction.

A Temporary Work Furlough

In an August 19, 2009 opinion letter, the DLSE considers the following scenario: A company has experienced significant economic difficulties due to the present severe economic downturn facing California and the nation. Though the employer has already laid off employees, it must further cut costs until the business conditions improve.

The employer would like to reduce the number of its employees’ scheduled work days from five days to four days per week. In implementing this reduction, the employer would not pay non-exempt employees for the day that they were not required to work and would reduce the salaries of the exempt employees by 20%. As soon as business conditions permit, the employer intends to restore both the full five-day work schedule and the full salaries of its exempt employees.

The General Rules

In California, there are three so-called “white collar” exemptions: executive, administrative and professional. (There are a handful of other exempt categories as well.) A properly classified white collar exempt employee must perform certain types of exempt duties (passing the “duties test) and must also be paid on a salary basis.

The salary basis test, found in California Labor Code § 515(a) and in California wage orders (which apply to your specific industry or occupation), provides that a white collar exempt employee must be paid a monthly salary equivalent to no less than two times the minimum wage for full time employment (40 hours per week).

Generally, an employer may not reduce an exempt employee’s salary based on the number of hours worked. For example, if an employee works only six hours in one day, when he was expected to work eight, the employer may not dock part of his salary. There are some narrow exceptions.

Work Furlough Rules

The DLSE determined that there is no express restriction in California law to having a fixed reduction in a salary during a period when the company operates a shortened workweek due to economic conditions.

Looking to federal labor law for an analogous rule, the DLSE noted that the U.S. Department of Labor concluded long ago that the salary basis test does not preclude a bona fide fixed reduction in the salary of an exempt employee to correspond with a reduction in the normal workweek so long as the reduction is not designed to circumvent the requirement that the employees be paid their full salary in any week in which they perform work.

The DLSE acknowledged that in an email letter issued in March 2002, the agency had concluded to the contrary, deciding that a salary reduction during a furlough was not legal. However, the federal court decision upon which the DLSE had based this conclusion was subsequently negated by a higher court ruling. Accordingly, the DLSE now states that the 2002 opinion letter can be disregarded.

Caveats

The DLSE’s opinion letter may not be the last word. The DLSE is California’s labor law enforcement agency, but it does not make law when it issues an opinion letter; it only interprets it. The California legislature could pass legislation to the contrary (though our current governor would likely veto it). Moreover, one of the many California appellate courts, or the California Supreme Court, could issue a contrary opinion.

However, the letter is well-reasoned and is consistent with federal law. It seems plausible to expect that the rule will take hold here in California.

Nevertheless, making the wrong call could be costly, so it is prudent to check with an employment law attorney prior to implementing a work furlough/salary reduction for salaried exempt employees.

Will there Soon Be an Alcohol Lock in Your Company Car?

The alcohol lock is making its way in Belgium, including in Belgian labor law. In its one hundredth Collective Bargaining Agreement, the Belgian National Labor Council has enacted the obligation for all Belgian employers to establish a well-conceived alcohol prevention and treatment policy. The installation of an alcohol lock in the employer’s company car park can be introduced in the framework of such a policy.

A drink from time to time, whenever there is something to celebrate, improves the working atmosphere. But when employees are unable to control their alcohol use, this could have serious consequences. Evidently, the employees’ productivity will decrease and he will make more mistakes. Further, for many professions, a drunk employee will entail a considerable safety risk, for the employee himself, for his colleagues as well as for third parties.

This concern has incited the Belgian employers and employees to conclude their one hundredth Collective Bargaining Agreement within the National Labor Council, providing certain agreements regarding alcohol use, the prevention and the remedy of alcohol abuse at work. In line with the Belgian Labor Law tradition, the CBA n° 100 starts from the prevention. Further, this CBA creates a Legal framework for (i) the use of alcohol at the work place, (ii) procedures to tackle alcohol abuse at the work place, including testing by the employer and (iii) procedures for aid. At the latest on April 1, 2010 every employer must mandatory dispose of a well established prevention policy, enlisting equally the different testing tools and procedures.

The employer will, as from today, have the possibility to install an alcohol lock, e.g. in the company’s car park, as a testing device, provided that the use of this lock constitutes a part of an overall well-established alcohol prevention policy within the company. The prevention policy must mandatory be implemented in the company’s work regulations (art. 3 CBA 100). Thus, the input of the employees is required. Further, the employees must in any case be previously informed with possible sanctions that are imposed in case of positive test results and testing can never be executed in the absence of the previously expressed consent of the employee (art. 4 CBA 100).

De CBA does not determine how the testing with a alcohol lock must be executed in a concrete way. It does state that every employer must provide in a tailor-made policy. Any form of standardization is prohibited. The CBA also enables the employer to introduce the alcohol lock for a specific category of employees, e.g. because this category is particularly often on the road. In case of a positive testing result, the employer can apply adequate sanctions.

Illegal Discrimination in Public Accommodations under Hawaii Law

Under Hawaii law, owners and operators exercise authority, control, or discretion over places of public accommodation. In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.

Under HRS Chapter 389, owners and operators exercise authority, control, or discretion over places of public accommodation. In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.

The Hawaii Civil Rights Commission (“HCRC”) has established that all owners and operators of public accommodations are liable for the discriminatory acts of its employees and agents, regardless of whether the acts were authorized or even forbidden, and regardless of whether the owners or operators knew or should have known that the act occurred.

The HCRC is responsible for receiving and investigating complaints from the public concerning any alleged Chapter 489 violations. The five-member Commission also conducts hearings, commences civil action in circuit court and orders legal and equitable relief.

The HCRC has held that unlawful discrimination under Chapter 489 can be established by proving:

1.a per se violation by an owner or agent of a public accommodation
2.direct evidence of discriminatory motive or intent
3.circumstantial evidence of discriminatory motive or intent

A per se violation of Chapter 489 is established if a customer shows, by a preponderance of the evidence, that an owner or employee or even agent of a public accommodation made a racial or sexist insult to a customer, or about a customer, in the course of serving that customer. In the HCRC’s view Chapter 489 violations can occur in the course of an employee’s routine dealings with customers or other members of the general public.

The HCRC has held in decisions that any customer who suffers a single, isolated racial or sexist remark in the course of being served has been denied the full and equal enjoyment of that public accommodation’s goods, services, facilities, privileges, advantages, and accommodations on the basis of a protected characteristic.

The HCRC has ruled that owners and operators of a public accommodation may also be liable for acts of third party individuals who are not employees or agents, if the owner or operator knew or should have known of the conduct, had sufficient control over the third party, and failed to take immediate and appropriate corrective action. Corrective action is immediate and appropriate if it: (1) involves a prompt and thorough investigation of the allegations; (2) ends the discriminatory conduct; and (3) deters future discriminatory conduct by the same offender or others.

Although the statutory language and legislative history of Chapter 489 is silent as to whether an owner or employee may be individually liable for violating the law, other provisions within Chapter 489 indicate that penalties may be assessed against individuals as well as public accommodations for prohibited discriminatory practices. The HCRC has also ruled that owners, operators, employees, and agents, may be individually liable for violations of the public accommodations law.

The broad reach of Chapter 489 also applies to successor owners and operators of a public accommodation. A successor will be liable for the discriminatory acts committed by its predecessor if there is a substantial continuity of identity in the entity. In addition, it is a discriminatory practice for two or more persons to conspire to retaliate or discriminate against a person because the person has opposed an unfair discriminatory practice, to aid, abet, incite, or coerce a person to engage in a discriminatory practice; or willfully, to obstruct, or prevent, a person from complying with Chapter 489.

The purposes of Chapter 489 include giving victims of discrimination by public accommodations complete relief. As a method of obtaining restitution for injuries and securing assurances that future discriminatory acts will not occur, Chapter 489 requires the assessment of fines for each violation, and establishes that each day of violation constitutes a separate violation. The civil penalty imposed for each violation is a fine which may range between $500 and $10,000. In addition to a civil penalty, owners and operators of public accommodations found guilty of violating the provisions of Chapter 489 will find themselves obligated to pay compensatory damages, attorney’s fees, and the greater of $1,000 or three times the damages sustained by the plaintiff, whichever sum is the greater.

Supreme Court Gives Green Light to All–in Severance Packages – Belgium

In a recent decision, the Belgian Supreme Court has given its green light for employers to dismiss an employee and to simultaneously agree on an all-in termination package with this employee. Thus, the Supreme Court enables the employer to dismiss an employee in an efficient way that is satisfactory for both the employer and the employee.

I. Dismissal regulations in Belgium and the issue in the case presented to the Supreme Court

In Belgium, an employer has two options to terminate his employees, apart from the dismissal for serious cause. It can (i) either give notice to the employee with a notice period, (ii) or terminate him with immediate effect. The first option consists in the employee continuing to work during the notice period. During this period, he is remunerated by the employer. The second option means that the employee is entitled to a severance pay equal to the remuneration for the number of months’ notice he would have been entitled to, in case of a dismissal with a notice period.

Belgian statutory law only provides for certain minimum notice periods that must be observed by the employer. For higher paid employees, i.e. the employees whose annual gross income is situated between 29,729 € and 59,460 € (resp. 30,322 € and 60,645 € as from January 1, 2010), the notice period is determined by both the employer and the employee by virtue of a mutual agreement.

In order to avoid employer pressure on the employee, the law prescribes that this agreement can be signed at the moment that the dismissal is given, at the earliest. At that time, the employee is deemed to be no longer subject to the employer’s authority. In the event that the employer and the employee cannot come to an agreement, it will be up to the court to determine the notice period. For employees whose annual gross income exceeds 59,460 € (60,645 € as from January 1, 2010), this agreement can be signed, no later than the moment that the employee is hired. We do not further elaborate this possibility in the present contribution. Since the severance pay in case of a termination with immediate effect will be equal to remuneration for the notice period that would have been due in case of a dismissal with a notice period, for higher paid employees, the severance pay can equally be determined at the earliest at the moment that the dismissal is given.

The question automatically rises what is meant by “the moment that the dismissal is given”. The answer to this question will not necessarily be the same in case of a dismissal with a notice period or with immediate effect. Indeed, the dismissal with a notice period requires the notification of a termination letter by bailiff or by registered mail that is deemed to have effect only three days after it was sent. The dismissal with immediate effect, on the other hand can be executed without any formalities, even orally. Thus, when the employee is dismissed with a notice period by registered letter, the agreement regarding the notice period can be concluded at the earliest three days after the letter is sent by the employer. In case of a termination with immediate effect, the agreement can be concluded without any delay. The present contribution only elaborates on the case of the dismissal with immediate effect.

II. Focus on the decision of the Supreme Court

It is common practice that the employer will immediately propose the employee to sign an agreement regarding severance pay from the moment of the dismissal. According to some, such as the Labour Court of Appeal in Antwerp, this practice was not authorized because it rendered it impossible to ensure that the employee was able to evaluate the agreement that was presented to him at a time that he was indeed no longer under his employer’s authority. According to this opinion, the agreement regarding the severance pay can only be signed after the dismissal is given, and not simultaneously with the dismissal.

Others, such as the Labour Court of Appeal in Brussels did not concur with this opinion. According to this Court of Appeal, in the event of a dismissal with an immediate effect, the employee fully regains his freedom at the moment of his dismissal. As a consequence, the employer and the dismissed employee can determine the severance pay by mutual consent at that moment. It is remarkable that, in a previous decision, the Labour Court of Appeal of Antwerp had accepted that an agreement was concluded between the employer and the employee at the moment that the employer informed the employee orally that he was going to dismiss him, thus even before the actual dismissal had been notified.

In a recent decision of October 5, 2009 the Supreme Court ruled that the agreement regarding severance pay can be signed at the same time the dismissal is handed out to the employee. By this ruling, the Supreme Court has given its green light for the employer terminating its employees while offering all-in severance packages, containing the dismissal as well as the agreement regarding severance pay.

III. Focus on the agreement regarding the notice period cq the severance pay.

The law does not further elaborate the formal requirements of the agreement regarding the notice period cq the severance pay. It does state that an acknowledgment by the employee that he has well received a severance pay on his bank account cannot be interpreted as such an agreement. The term “agreement”, clearly indicates that it must be an agreement with mutual consent. It cannot be a unilateral decision from the employer.