The Retailer I Work For Just Went Bankrupt. What Are My Rights?

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The outlook is really, really bad for retailers this year. As many large stores filed for bankruptcy in the first quarter of 2017 alone as in all of 2016, and analysts are concerned that we could see a record number of chains shutter this year. And while it’s bad for consumers to lose a place to shop, it’s worse for workers, who are out of a job — but maybe not entirely out of luck.

The big question for workers whose company folds is: What about my money?

It’s a reasonable question. Companies declare bankruptcy when they run out of money, after all, so if your soon-to-be former employer owes you cash, seeing those “store closing” signs may leave you feeling anxious about whether or not you’ll get paid. But under the law, you’re probably going to get what you’re owed… eventually.

The devil, as always, is in the details. What you’re actually owed, and when you can get it, depends on the type of bankruptcy your employer filed and what state you worked in.

The important thing with either Chapter 7 or Chapter 11 bankruptcy filings, notes William Kransdorf, director of the NYC Bankruptcy Assistance Project with Legal Services NYC, is that employees are generally considered to have a high-priority claim.

Chapter 7 bankruptcy, he tells us, is a process that tends to be reserved for smaller businesses and sole proprietorships. Under those plans, a company completely liquidates all its assets, so after that it’s a matter of handing out what money remains to those who can get it, and that’s done in a matter of a few months.

Under Chapter 11 bankruptcy, meanwhile, a large company can either liquidate or try to restructure and keep going after doing away with some of its debts. But either way, hen a company goes bankrupt, anyone owed money — all the groups of creditors — basically have to metaphorically line up in court to stake their claim on whatever money is left, a process that can take months or years.

“There are some good things in the law for employees,” Kransdorf tells Consumerist. Basically, workers get to go first, straight to the front of the line.

Specifically, the law protects the money you earned in the six month period before the company declares bankruptcy, Kransdorf explained. Under Section 507 of the Bankruptcy Code, that means, “wages, salaries, or commissions, including vacation, severance, and sick leave pay earned by an individual” are considered priority claims.

However, what you’re entitled to consider “wages” depends in part on which state you work in, Kransdorf confirmed — and that’s particularly important when it comes to vacation or sick leave pay. Some states require that employers include cash out pay for accrued unused paid time off when you and your company split ways — but not all.

According to Workplace Fairness, about half of states overall have some kind of law on the books having to do with whether your employer needs to include unused vacation time in your final paycheck. The list includes:

  • Alaska
  • Arizona
  • California
  • Colorado
  • Illinois
  • Indiana
  • Kentucky
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nebraska
  • New Hampshire
  • New York
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island (after one year of employment)
  • Tennessee
  • Washington, D.C.
  • West Virginia
  • Wyoming

Your retirement benefits are also likely to be just fine, Kransdorf tells us. That’s because they’re usually not actually held by your employer. An old-school pension — should you actually have one these days — is a separate thing that either thrives or goes bankrupt on its own, independently of the business you worked for. Likewise, a retirement investment account like a 401(k) or IRA is going to be elsewhere, with whatever company manages the plan.

But even though you can get paid, the money isn’t just going to wend its way to you without you doing anything, Kransdorf cautioned. Employees who want their pay will “need to do something affirmative” and file a claim, he explained.

If you work for a company that is going bankrupt, you’re supposed to get notices about what’s happening, when, and how to file your claim. But if your employer hasn’t kept their records of who’s owed money correctly — or if your name or address or something else on that list is wrong — you might never get notified.

“So if you know or suspect your employer is filing for bankruptcy soon,” he advised, “check with a lawyer — because you’ll have limited time to get your claim filed.” Because although you can still potentially try to file a claim or sue later down the line, you can’t get any money back after it’s all gone somewhere else.

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