Can I start work whilst still being employed by another company?

Question

I am currently employed to Company A for 20 years in Texas. I was made redundant and will receive severance for years of service if I stay working for two months. There is a state act called Worker Adjustment and Retraining Notification (WARN) that gives employees 60 days of work before their jobs are made redundant.

However, I have found another job which needs me to start in 5 weeks. I spoke to my manager at his discretion it is okay if I just take the job (although HR has said I would have to wait two months). I would have to return at the end of the month to get my sign a letter to get my severance.

So I would be receiving a salary from the new company for 3 weeks of the month and also get a salary for the same 3 weeks from my existing company. The new company will not know I am doing this.

Can I get in trouble legally or from the new company if I take the new job?

Answer 1

The Worker Adjustment and Retraining Notification Act of 1988 is a Federal law requiring certain types of employers (e.g. those with more than 100 employees) to notify workers at least sixty days in advance of mass layoffs and plant closures. These terms are defined in the law. Since Texas does not provide supplementary protections in these circumstances, workers are protected only by the WARN Act.

The WARN Act does not prevent you from finding new employment since it does not contain provisions for compensation of workers. If you continue to work for your company during the period of notification then you will continue to be paid for your work. Additionally, and as mentioned by Tim, a new employer will likewise pay you for time worked.

Since it seems that you may be interested in concurrently holding the two positions, you will likely have to consider the following outside the scope of this question:

1. Do you intend to collect a severance? The issue of severance is not governed by the federal WARN ACT. Employer policies and state law may be worth looking at here. The U.S. Federal Government makes no requirement that employers pay severance. By agreeing/signing to the terms of severance, you make your severance compensation conditional upon the terms of that agreement. These conditions might include a prohibition against concurrent employment elsewhere or, more narrowly, that you must meet basic attendance requirements. However, you are always entitled to payment for work performed, and your employer is required to provide you with your last paycheck. Your union is a great resource. If you have one a union steward, talk to him or her about the language in your company's severance agreement; they may have already paid a lawyer to examine various employer documents.
2. Will you be seeking unemployment benefits? Generally, you must be unemployed and seeking work to qualify for these benefits. Forms for application for unemployment benefits have strict language, making an easy perjury case in the event someone attempts to both collect wages and unemployment benefits.
3. Will you work both jobs for the duration of the WARN Act notice? It does not appear that there would be any federal restriction on doing so. Again, your employer may have policies that restrict you from being concurrently employed elsewhere, and violating company policy could be grounds for termination outside WARN Act protection. But this might not be worrisome for you, since you will already have another job. Remember that the WARN Act exists in part because employers know that by notifying workers, they invite the workers to leave in droves. You may find that your employer is happy to work with your new work schedule, while they struggle to keep their facility staffed. It is unclear what, if any, ramifications there would be for a facility that had too sparse a work force to continue safe operations, and whether this would re-classify the employer under the WARN Act exceptions for a faltering company.

Consider getting the advice of a lawyer, and know that it's usually a good idea to keep records of agreements. Document everything of concern.

Answer 2

The new company won't care what your old company does: so long as you start work as agreed, they will pay you.

But your old company would have legitimate cause for complaint: they are paying you severance, and giving you a notice period, partly to give you time to find a new job. If you have found a new job, this is no longer needed; it could well be that the letter you have to sign at the end of your employment staes that you are currently unemployed, and since you can't properly sign it you will not receive any payment. Not knowing the details of WARN, I can only suggest that you speak to a lawyer to find out what your legal rights are.

The alternative, of course, would be to speak to a sympathetic person in HR, and attempt to reach a compromise. In your favour are: that it is already agreed that you will not be coming in to work during those two months, that your manager is happy with you taking the new job (so there is no concern about helping competitors), and that the company loses nothing no matter what date you start the new job. In the company's favour is that they have the right to insist that your employment with them is exclusive, so that you cannot legally start the new job till the day after they pay you off. If the HR department is reasonable (not all are), the compromise will end your employment on the day before your new job but still pay you some severance or notice pay after then.

Answer 3

I cannot believe nobody else has mentioned this. What does your contract say? (Actually both your contracts.)

My employment contract says that I will not work for another employer without written permission. This condition was also present in my previous contract, and the one I signed in 1995 (but these were all in Europe rather than the US).

If either of your contracts forbid it, then you can't do it. If neither of them do, it should be fine.