You could argue that an overly cautious founder might cut all their employees off immediately out of an abundance of caution, but that would be self-immolation.
As a non-lawyer with zero credibility, I’d be shocked if any founders of companies that can’t make payroll because of this are at risk of the corporate veil being pierced. SVB was based in California, subject itself to California law, it would require some extreme mental gymnastics from a judge to believe that a company that can’t make payroll because they used SVB behaved inappropriately in this situation.
Again, I have zero credibility, but I’d expect when the dust settles, the only companies we see get in any trouble will be the companies that do some insane illegal things in a panic because they get caught up in the tidal wave of fear. Founders withdrawing millions into their personal accounts and then losing it by buying crypto or going to vegas to do a fedex with their remaining cash or something equally insane feels much more likely an outcome.
All you have to do is file a wage theft claim with the Labor Commissioner, who evaluates your claim and issue an ODA (Order Decision or Award). Once the ODA is filed it is considered a legal judgement against the employer. You can then use any legal means to collect.
Anyone who's been on the internet more than five minutes knows how much an uncited claim about the law is worth.
I find it very hard to believe they don't have some clause about employers acting in good faith but who can't make payroll because the payment processor had a truck number of 1, the bank was robbed that day and there was a police line or any of the other legitimate reasons processes have hiccups. And if they don't have that clause the labor commissioner almost certainly just ignores those claims until it's clear whether they're gonna shake themselves out or not.
The labor commissioner's office is almost certainly going to be slower at getting people the money than the company is (the latter is already set up to do so) in cases where the company is acting in good faith so in those cases the labor compssioner's office will best serve employees and also have the least work to do by just sitting back.
You forget that thinking, rational, humans are ultimately charged with enforcing the law.
Also, you seem way too certain of something that has no precedent. Show me where a major bank has gone under, caused companies to miss payroll, and the corporate officers were held liable.
Sure, but if all but $250k of your funds are in limbo and you don't have revenue, there's nothing to collect.
The wage theft section of the California Penal Code (section 487m) says it is the intentional deprivation of wages. The California Labor Code talks about it in section 216, which applies when the employer has the ability to pay and willfully refuses.
It is hard to see how failure to pay because your bank collapsed and you can't get the money would be either intentional or a willful refusal.
If my employer knows they can't pay me, and they ask me to do work anyway that is causing me serious losses. The moment they know they can't pay me, they have to stop asking me to do work. I would expect someone to be accountable for those sort of serious lies.
If your employer said to you, “we are caught up in this, we are working to resolve the situation“ it would be pretty fair and reasonable of them. You can choose to quit if you want, you’re under no obligation to work.
(I have no idea what I'm talking about legally, I'm just trying to interpret what I'm reading).
What if they relied on cash for multiple payments (think startup that got funding)?
It is also unlikely that people wouldn't notice they are not getting paid so it is hard to argue they won't know about further non-payments.
I would say if they don't have money to pay people they have nothing else to do than fire them or shut down/go bankrupt if it means the company cannot continue.
What if they have a chance to get funded/bailed out or if they expect money to come soon (from expected cash flow)?
I think the danger for the board should be if they promise people get paid and then they can't do good on that promise. Or if they actually have money but use it for something else instead of paying people.
Look, we had $X in our account on Wednesday and did a payroll run that was more than covered, but then our bank went under and the payments never got there. That's not our fault, nothing we can do about it!
But as time goes on and you're still employing people while having no bank account, you become more culpable for their unpaid wages after you find out you have no money.
The tricky thing here, I think, is that it still isn't very clear what is going to happen and it'd be silly to immediately fire a bunch of people because of it. There is a good chance some other bank acquires SVBs accounts and things are back to normal pretty quickly. If that doesn't happen, there is still a lot of money to go around, so you aren't losing 100% of what is in there.
I think there is a good argument that it is prudent and legally defensible to wait a day or two to figure out what is going on before you go nuts and shut the business down.
After an accident your insurance company doesn’t get to wait on Bob paying them to pay you. But they can sue Bob/his insurance company to recover their money.
I didn't know this! Can anyone direct me to the relevant law?
With the disclaimer that I am not the expert we all hoped would show up to explain, I think the intent is to provide statutes to back up the social contract around wages. Any inkling of the possibility that an employer can wiggle out of paying wages it promised to pay is going to have an outsized effect on an employee’s trust. And businesses do not want (and in the case of a small business or startup cannot) to pay wages up front. Incentivizing a business to lay people off rather than promising them wages that may or may actually appear actually seems like an okay outcome in the degenerate case since the employee has various rights and protections that are triggered by a layoff while unpaid wages could pile up endlessly until the employee initiates action themselves.
"Rejecting Pedrazzani’s argument, the Court of Appeal relied on language of the applicable California statutes: Cal. Labor Code § 558 (West 2018) and Cal. Labor Code § 1197.1 (West 2018). Section 558(a) subjects “[a]ny employer or other person acting on behalf of an employer” to civil penalties for overtime violations. Similarly, section 1197.1(a) subjects “[a]ny employer or other person acting either individually or as an officer, agent, or employee of another person” to civil penalties for minimum wage violations. The Court of Appeal held that Pedrazzani was responsible as an “other person” who caused the overtime pay and minimum wage violations."
More specifically [2]
EDIT: I am not a lawyer not legal advice
[1]: https://www.law.cornell.edu/wex/piercing_the_corporate_veil [2]: https://www.investopedia.com/terms/u/undercapitalization.asp
[1] https://www.severino-law.com/blog/oqz4dx2ivdnzt7aqqrvbk9et11...
So in either case - payroll resumes normally or is paid from personal assets of company directors - some employees might have to wait for things to be sorted out at SVB.
This is the key point in my opinion, and one I was not aware existed. Personal liability changes everything. You can't tell employees to sit tight while funds eventually get unlocked if you're going to find yourself getting sued.