Can an employer do this? UPDATE POST #26

[Mardi Gras Audrey]

Help, fine people!

Last fall, I changed from a fulltime position at my old employer to a Float position (Basically, you fill in where needed, no guaranteed hrs) and took a job at another employer.  I was 7 months pregnant and the manager who approved me to stay as an employee knew I was pregnant. I had loads of PTO (I hadn't taken a vacation in 2 years and we had been working like 12 hours/day (PTO was accumulated based on time worked)) so I was on PTO for about 5 weeks after I left fulltime. 

After PTO ended, I had the baby so I hadn't been back to work at either employer. About 2 weeks ago (This was 9 weeks after birth), the manager who approved me going parttime emailed me and advised me that he would be terminating my employment at the beginning of Feb since I hadn't worked since I left the fulltime spot unless I started working.  I said that was fine (I wanted to go back but I had been back at my fulltime job for 3 days and am still getting used to working and having baby. I don't think I would be ready "soon enough" for him so I said fine, end the job).

Well, they ended the employment but put the end date of employment as last fall (4.5 months ago, Prior to the 5 weeks of PTO).  So, this has put COBRA into effect as of last fall instead of the employer plan even though I was paying premiums through payroll while on PTO.

Can they do this?  The email I got from the manager just said he would be "processing my separation if I didn't respond by 2/2/17 and resume regular shifts".  It says nothing about what date they would be "effective" and that it would be backdated to the week I went out on PTO. 

I will admit that I failed to send them paperwork to get covered by FMLA (I would be eligible for FMLA and disability through that employer). Since the position was a fill-in position and I wasn't claiming disability through them (I was unpaid through mat leave since I wasn't at my new employer long enough to get paid mat leave), I thought it wasn't necessary. 

[Tennesseer]

Audrey-I am still mulling this.  

During your PTO, you must have had medical bills and submitted insurance claims.  Who were the bills being paid by? 

[Mardi Gras Audrey]

Feb 19, 2017 18:53:25 GMT -5 Tennesseer said:

Audrey-I am still mulling this.  

During your PTO, you must have had medical bills and submitted insurance claims.  Who were the bills being paid by? 

They were paid by my old employer's plan as the primary and my new employer plan as the secondary. I had called my old employer's plan several times and they kept confirming that I had coverage and it was active. My old employer used "average number of hours worked over a 12 week period" to determine eligibility for insurance. Because I worked so much prior to leaving the fulltime spot, the average was still above 30 while I was on PTO.  

During open enrollment with the old employer, I declined coverage for 2017 (As I was now only going to work as a fill in and had coverage through the new employer)

It's a mess. My paystubs all said I was an employee, I was still getting an employee discount (as of 2/1) when I used services, and I even got a bonus while on PTO for a month...

ETA: The old employer plan was reporting to whatever database insurers report to about cross coverage. Near the end of the year, I tried to use the new employer plan only and those claims would get denied because the old one kept saying it was active (and therefore, would be primary). I really don't want to be paying for COBRA based on the employer making the end date retroactive.

[milee]

Have you tried talking about this with your old employer? Especially given the extra details you give about your understanding and how the insurance was working.  Start with your prior manager, and if he's unhelpful then go to whoever does the company's HR work.

[Mardi Gras Audrey]

Feb 19, 2017 19:30:47 GMT -5 milee said:

Have you tried talking about this with your old employer? Especially given the extra details you give about your understanding and how the insurance was working.  Start with your prior manager, and if he's unhelpful then go to whoever does the company's HR work.

I haven't yet.  My old manager did not seem to be fond of me and his email to me a few weeks ago made it clear that he didn't want me as an employee anymore (The email wording was very CYA, even though I thought we had been on good terms).  Even when I asked to stay parttime, he advised me that he would agree but that it "never works out".  This is a guy who made disparaging comments about another manager who took a few weeks off when his baby was born last summer (We are in CA and the law allows both parents to take bonding time. He let me know that he didn't know why the other mgr needed more than a few days off   .  Yes, he knew i was pregnant when saying this to me. That mgr was since fired in the fall. 

I wanted to stay as parttime because I could work at other company locations and I liked the overall co.  

[milee]

I'm suggesting you first try to talk to your employer to solve this amicably because this is a pretty complicated fact set and there are some things that may fall into a grey area (even though I agree with you on the surface they sound unfair.)

Assuming your employer is large enough to be required to follow FMLA, that means you would have had FMLA protection except you didn't provide the required paperwork to support your request. Sounds like a technical gotcha, but even the US Department of Labor website's description of FMLA states that employers can require the employee provide certain documents within certain times, so you may not technically protected by FMLA depending on how the paperwork requirement is interpreted.

If you're not covered by FMLA then your legal coverage is probably most likely to be detailed under your state labor laws since most states have more detailed labor laws than the federal ones.  Again, it's complicated.

If your employer is reasonable, they should work with you and that's where I'd start if I were you.  At least to move the separation date to the date after your PTO ran out... 

[Mardi Gras Audrey]

Milee, they are large enough and I would have been covered under FMLA. The only way I found out about this was the COBRA paperwork arrived and had an employment end date of 9/30/16 (I got the paperwork in the mail yesterday   .

[Mardi Gras Audrey]

Would it be normal to make one's termination date retroactive though?  That just seems odd.... 

[milee]

Feb 19, 2017 19:57:38 GMT -5 Mardi Gras Audrey said:

Milee, they are large enough and I would have been covered under FMLA. The only way I found out about this was the COBRA paperwork arrived and had an employment end date of 9/30/16 (I got the paperwork in the mail yesterday   .

If they're large and have an HR department, then start with them. Yes, I have seen retroactive termination dates, but I don't have experience with California employment law.

I suspect unless you've been a real PITA or your employer is the pits, you can work this out with HR. Explain the fact set, including details on how the insurance was a factor and work with them.  No matter what, it would be difficult to justify the termination date being prior to the payout of the PTO.  Federal law requires an employer immediately pay out any unpaid PTO (if an employee has earned PTO that is payable) at the time of the employee's termination.  Since your employer didn't pay the PTO out in one lump sum at your alleged termination date, they were de facto acknowledging that you were still an employee - were not terminated at 9/30/16 - by paying your PTO through normal, multiple payrolls so it would be tough for them to argue that your termination date was prior to the last PTO payout date. 

So if you can at least get them to agree that you were employed until 11/4/16 (assuming that was when the last of your 5 weeks of PTO was paid out to you), that helps.  Again, it varies by state and employer but a common standard is that health insurance premiums are paid at the beginning of the month for the entire month.  So if you were still employed as of 11/1/16, your employee health insurance would have been paid as of that date for November.  That way if worse comes to worst you're only looking at the COBRA issue for one month - December.

[Tennesseer]

Audrey-the retroactive date of termination does seem odd.

On the retroactive,  you status as a permanent employee changed to casual/oncall.  So protections under permanent status did change and should have.  

I am thinking your manager never changed your employment status until as of late.  Hence, the continued deductions of your medical premiums.

As Milee said, I would bypass management and go directly to HR for them to sort out.  Save and makes copies of all your correspondence, including any emails between you and your manager pre and post PTO.  Send all data to HR .  Make sure you mail the data and get signed notification of receipt. 

[Tennesseer]

I take it back-your status from permanent to casual should have ended on the last day of your PTO unless your PTO monies were paid in a lump sum at the beginning of it ( which from the sounds of it was not the case).

[Mardi Gras Audrey]

THe PTO wasn't paid in a lump sum because I was going to be staying on as a float employee.  I told them how much PTO I wanted to use each week.  The last pay check with PTO (and the the premiums) was paid on 11/30. 

I haven't tried to be a PITA but I know upper management did not like me. Our workplace was toxic by the time I left. They did a takeover of a competitor last year and doubled our workload while not giving us more personnel.  When we couldn't make it work and were getting massive customer complaints (long wait times, not meeting orders, etc) and having massive staff burnout (We were working 12 hour days with only 1/2 hour lunch, no breaks), I asked upper mgt for help and they just kept telling me to "figure it out" and "it will get better".  The staff I had was for the most part either new or incompetent so I was trying to train them without having anyone to train them. We would be getting screamed and cussed at every day.  It was wild and they didn't like me saying that this couldn't get done without more help (Mgt's position was that they had given us extra help for a few weeks and after that, we were on our own).

I was asked twice by upper mgt to do something that was illegal and involved falsifying documents (to increase sales).  I think they viewed me as a negative Nelly and that all our customer issues were my fault even though we just didn't have the staff to get things done.  We really tried but could only work as hard as we could. I felt bad for our customers and knew they deserved better service/less waiting but we just didn't have the resources (all of my staff worked really hard).  After I left,  1 low level mgrs got fired, one of my colleagues quit, and the person who took my place left after 3 months (Keep in mind we only had like 11 employees at our location).

This is a large corporation and the HR is not in CA.  I don't think they had any clue what was going on out here.

[Mardi Gras Audrey]

Feb 19, 2017 20:16:56 GMT -5 Tennesseer said:

Audrey-the retroactive date of termination does seem odd.

On the retroactive,  you status as a permanent employee changed to casual/oncall.  So protections under permanent status did change and should have.  

I am thinking your manager never changed your employment status until as of late.  Hence, the continued deductions of your medical premiums.

As Milee said, I would bypass management and go directly to HR for them to sort out.  Save and makes copies of all your correspondence, including any emails between you and your manager pre and post PTO.  Send all data to HR .  Make sure you mail the data and get signed notification of receipt. 

The only thing is that with this company, float employees are entitled to the same benefits as full-time employees if they have enough hours (average of 30 per week). Even the fulltime employees are not "guaranteed" hours (and the associated benefts).  We are all hourly and have to just stay above the average

[milee]

Feb 19, 2017 20:54:20 GMT -5 Mardi Gras Audrey said:

THe PTO wasn't paid in a lump sum because I was going to be staying on as a float employee.  I told them how much PTO I wanted to use each week.  The last pay check with PTO (and the the premiums) was paid on 11/30. 

OK, but the point remains the same - by not paying the PTO out to you in a lump sum on 9/30/16, the employer acknowledged through their actions that you were still an employee.  For the love of God, don't argue against yourself or make the waters even more muddy here.

Try to work with HR as a reasonable person - most of the people in HR are reasonable people too.  Do not go into any of that other stuff about your workplace.  It won't help your argument and risks bringing up other issues.  Just try to work with HR about what would be reasonable.  Bare facts that relate to your understanding - and the company's actions that support your position such as them not paying 100% PTO on 9/30 and the continued emails from your manager - only.

It should be easy enough to get them to agree that you were an employee through 11/30, since that was your last PTO payout.  (Otherwise they are flat out admitting they were illegally not paying you PTO upon your termination...).  Once you get that agreed to, you're really only negotiating the December healthcare premium issue.  Small and reasonable.  Don't make it worse than it has to be.

[Mardi Gras Audrey]

Feb 19, 2017 21:00:59 GMT -5 milee said:

Feb 19, 2017 20:54:20 GMT -5 Mardi Gras Audrey said:

THe PTO wasn't paid in a lump sum because I was going to be staying on as a float employee.  I told them how much PTO I wanted to use each week.  The last pay check with PTO (and the the premiums) was paid on 11/30. 

OK, but the point remains the same - by not paying the PTO out to you in a lump sum on 9/30/16, the employer acknowledged through their actions that you were still an employee.  For the love of God, don't argue against yourself or make the waters even more muddy here.

Try to work with HR as a reasonable person - most of the people in HR are reasonable people too.  Do not go into any of that other stuff about your workplace.  It won't help your argument and risks bringing up other issues.  Just try to work with HR about what would be reasonable.  Bare facts that relate to your understanding - and the company's actions that support your position such as them not paying 100% PTO on 9/30 and the continued emails from your manager - only.

Yeah, I am going to call them on Tuesday and stay calm. I have had only good dealings with our HR and it isn't their fault about what happened at our work site. that is part of the reason I wanted to stay parttime, I liked the company as a whole... it is just a few in mgmt that weren't any good

[Mardi Gras Audrey]

Should I bring up the baby situation (my error was not submitting the FMLA paperwork)? I know it was my error but I don't want them thinking I was sitting on a beach somehwere refusing to work

[milee]

Feb 19, 2017 21:11:01 GMT -5 Mardi Gras Audrey said:

Should I bring up the baby situation (my error was not submitting the FMLA paperwork)? I know it was my error but I don't want them thinking I was sitting on a beach somehwere refusing to work

I would, but only in a passing way.  If they're good HR they will be aware that you missed the paperwork so are probably not technically covered but also that you're likely to elicit sympathy in any EEOC or legal action.  And everybody's different, but I know as an employer now and in the past as a consultant turning around troubled companies, whenever I had an employee that started bringing the law into a discussion, it raised my level of awareness/defensiveness because those tended to be the ones that only knew enough to be dangerous to themselves and were looking to imply that they had a legal lever over you.  Frankly, I think you have a weak case here for anything past employment as of November so you want to be working with HR as a sympathetic party and partner in solving this, not as an adversary making implied threats.

If it were me, I'd bring up the baby as part of a single sentence to explain why you went part time and then drop it.  An HR person will understand the unspoken implications with that.

[Mardi Gras Audrey]

Feb 19, 2017 21:19:02 GMT -5 milee said:

Feb 19, 2017 21:11:01 GMT -5 Mardi Gras Audrey said:

Should I bring up the baby situation (my error was not submitting the FMLA paperwork)? I know it was my error but I don't want them thinking I was sitting on a beach somehwere refusing to work

I would, but only in a passing way.  If they're good HR they will be aware that you missed the paperwork so are probably not technically covered but also that you're likely to elicit sympathy in any EEOC or legal action.  And everybody's different, but I know as an employer now and in the past as a consultant turning around troubled companies, whenever I had an employee that started bringing the law into a discussion, it raised my level of awareness/defensiveness because those tended to be the ones that only knew enough to be dangerous to themselves and were looking to imply that they had a legal lever over you.  Frankly, I think you have a weak case here for anything past employment as of November so you want to be working with HR as a sympathetic party and partner in solving this, not as an adversary making implied threats.

If it were me, I'd bring up the baby as part of a single sentence to explain why you went part time and then drop it.  An HR person will understand the unspoken implications with that.

I don't intend to bring up the law.  I am not someone who likes to pull in the law like that (I know it just makes people defensive and at that point, working something out is not happening).

Should I mention the new job? That was the reason I left the fulltime gig. I would have returned to parttime (Plus my new fulltime gig) but wanted to wait until I was a little more settled with the baby and all.  If I don't mention it and they call the mgr, I don't want it to look like I am lying or hiding something.  I just want what's fair. 

I mentioned the job info just to give you a sense of why I don't think our local mgmt would back me up.  I don't want to start anything with HR and just want to move on but I don't want them sabatoging me either 

[milee]

Feb 19, 2017 21:51:57 GMT -5 Mardi Gras Audrey said:

Feb 19, 2017 21:19:02 GMT -5 milee said:

I would, but only in a passing way.  If they're good HR they will be aware that you missed the paperwork so are probably not technically covered but also that you're likely to elicit sympathy in any EEOC or legal action.  And everybody's different, but I know as an employer now and in the past as a consultant turning around troubled companies, whenever I had an employee that started bringing the law into a discussion, it raised my level of awareness/defensiveness because those tended to be the ones that only knew enough to be dangerous to themselves and were looking to imply that they had a legal lever over you.  Frankly, I think you have a weak case here for anything past employment as of November so you want to be working with HR as a sympathetic party and partner in solving this, not as an adversary making implied threats.

If it were me, I'd bring up the baby as part of a single sentence to explain why you went part time and then drop it.  An HR person will understand the unspoken implications with that.

I don't intend to bring up the law.  I am not someone who likes to pull in the law like that (I know it just makes people defensive and at that point, working something out is not happening).

Should I mention the new job? That was the reason I left the fulltime gig. I would have returned to parttime (Plus my new fulltime gig) but wanted to wait until I was a little more settled with the baby and all.  If I don't mention it and they call the mgr, I don't want it to look like I am lying or hiding something.  I just want what's fair. 

I mentioned the job info just to give you a sense of why I don't think our local mgmt would back me up.  I don't want to start anything with HR and just want to move on but I don't want them sabatoging me either 

Yes, but again only in a brief, passing way.  It's relevant that you have insurance from another source.  Part of your discussion with HR is that you made decisions (such as not taking your new job's insurance as primary coverage) based on your understanding that you were still classified as a full time employee with your first employer.  You relied on that information and if that wasn't true, you could have made other decisions.  Important point.

[Tennesseer]

Audrey-tonight or tomorrow write out the points you want to bring to HR's attention and stck with them during your conversation with them.

If they cannot resolve the issues and points with you on your initial call, I would follow up with a letter to HR with those same points.  HR probably won't, but if they do forget any of your points, your write-up will help refresh their memory of the conversation.

[milee]

Feb 19, 2017 20:56:38 GMT -5 Mardi Gras Audrey said:

Feb 19, 2017 20:16:56 GMT -5 Tennesseer said:

Audrey-the retroactive date of termination does seem odd.

On the retroactive,  you status as a permanent employee changed to casual/oncall.  So protections under permanent status did change and should have.  

I am thinking your manager never changed your employment status until as of late.  Hence, the continued deductions of your medical premiums.

As Milee said, I would bypass management and go directly to HR for them to sort out.  Save and makes copies of all your correspondence, including any emails between you and your manager pre and post PTO.  Send all data to HR .  Make sure you mail the data and get signed notification of receipt. 

The only thing is that with this company, float employees are entitled to the same benefits as full-time employees if they have enough hours (average of 30 per week). Even the fulltime employees are not "guaranteed" hours (and the associated benefts).  We are all hourly and have to just stay above the average

BTW, this is what really kills your case that you should still get insurance through the end of the year.  If your employer requires float employees and even full time employees to be working 30 hours per week to be eligible for benefits, then you wouldn't be eligible for benefits.  If you'd submitted the FMLA paperwork, you'd be covered, but you didn't.

Your best argument is to start by getting HR to agree that the company de facto agreed that you were an employee through 11/30/16 because they were still paying you PTO a portion per pay period rather than paying you a lump sum that would be required as of 9/30/16 if that were your termination date.  I suspect HR will agree with that because they know they erred there.

But past 11/30, you weren't working enough to qualify for benefits and you hadn't submitted the FMLA paperwork to cover your lack of hours so you have an uphill battle in regards to December's insurance.  Your best bet is to argue confusion with your manager and the fact that you relied on your manager's representations, which made you not elect primary insurance at your new employer, etc.

[milee]

Oh, and it goes without saying but do not complete any COBRA paperwork until you get this resolved with HR. Since you had insurance with your new employer during this time, you may end up passing on COBRA from employer #1. You'll have to run the numbers to see if that makes financial sense and it will create some paperwork headaches because what will happen is your insurance will end up recouping any payments they made during that time and the providers will resubmit to employer #2's insurance, but it still might be the route you take to save some $$$.

[naughtybear]

How were you going to "float" when needed with other fulltime employment?

[milee]

One last thought...

As an employer, I wouldn't dispute you on this one. Even if I thought legally that your termination date was 11/30 (when the last of your PTO was paid out), it wouldn't be worth it to me to argue or be a jerk over a single month's employer's portion of insurance premiums.  I've seen employees sue or go to the EEOC over much sillier things, and especially with a pregnant employee, that's another hassle and expense I wouldn't want to risk dealing with.  So you do have some things in your favor and if your HR person is reasonable you really should be able to work this out if you're reasonable with them.

[Mardi Gras Audrey]

Feb 19, 2017 22:30:02 GMT -5 naughtybear said:

How were you going to "float" when needed with other fulltime employment?

I was going to have 2 jobs (one parttime and one fulltime). My new job has a lot more holidays than my old job so the old place would be open on days the new one isn't. Those are also the days a lot of the fulltime staff want/need off (They have school age kids that would get the days off). The old place also has later hours so I could work at night or on off hours.  Both employers were fine with it as long as the times I was working wouldn't conflict.

There are a lot of people in my field that work two jobs like that.  One of the admins from my old employer even said that she loved working with people from my new employer because we wanted to/were able to work the shifts that no one else wanted (Most of the fulltime folks want the banker's hours-type shifts).

[Mardi Gras Audrey]

Feb 19, 2017 22:49:43 GMT -5 milee said:

One last thought...

As an employer, I wouldn't dispute you on this one. Even if I thought legally that your termination date was 11/30 (when the last of your PTO was paid out), it wouldn't be worth it to me to argue or be a jerk over a single month's employer's portion of insurance premiums.  I've seen employees sue or go to the EEOC over much sillier things, and especially with a pregnant employee, that's another hassle and expense I wouldn't want to risk dealing with.  So you do have some things in your favor and if your HR person is reasonable you really should be able to work this out if you're reasonable with them.

This is what I am hoping. I was trying to reasonable and that's why I didn't file for disability from the first one and cancelled my enrollment at open enrollment.  I thought the insurance would end at some point so I kept checking and I kept being told it was still active.  The problem is that the insurances knew about each other so when I tried to use just the new employer's plan, I was told "you can't, claim denied. Must send through old employer first".  There are insurance industry guidelines to determine which plan is primary vs secondary and they go by date of enrollment (longest plan first). If they would have cancelled it sooner, it would have reduced the headaches. 

I believe the employer portion of the plan is like $160 per pay period (Single adult, highest deductible plan) so it would cost around $350 for them for the month.  Hopefully, that is a small cost to end this peacefully.

It just irks me a little that they did this so late in the game.

[Mardi Gras Audrey]

Small update:

So, HR doesn't seem to be very reasonable. I called them about a month ago. I spoke to the department that handles employee records/separations.  They said that having the last date worked at the end of Sept was correct because "you can't extend your employment by using PTO". I then brought up the paying PTO out over 2 months and asked if they were supposed to pay out sooner. They said they weren't required to pay out accrued PTO sooner, it was all based on their pay periods, per policy.    

When I stated that I wasn't using PTO to extend employment, they said I could "take up the issue with another dept in HR". So I called that dept. It took a week to assign a specialist and call me back. The specialist left a message for me (I was in an area with spotty reception). I called her back within 5 min and every day for a week (She didn't answer her phone or call me back). After 1 week, she called me back and we talked. She was confused about the situation. I sent her the email from my manager from late January indicating I was still employed at that time.  She said it sounded like I should have been employed later than Sept but she had to talk to records. 

Her answer from records?  The same as what I got a month ago. Now, she says it is a "benefits" issue so someone from that dept will be calling me. Yet, I haven't gotten any calls and it has been almost 2 weeks.  I did ask during our call how I get all my premiums (from my time on PTO) back if the date of separation was correct (I had medical, dental, and supplemental disability insurance through them).  I figure if I wasn't employed and they are going to try to slap me with COBRA, I should get all my money paid back.  

I am pretty steamed right now... I don't know if I should start a complaint with the state Dept of Labor yet.

I was doing a little research and it looks like CA law requires accrued PTO to be paid out within 72 hours (Mine took 63 days to pay out). If it isn't, the employer can owe a penalty for every day late (up to 30 days).  It is equal to a day's wages for each day.  In my case, that amount would be substantial, compared to the 2 months of medical premiums they paid.....

ETA: I just thought about something else... the premiums were pre-tax and will change my W-2 if they get refunded. So, I shouldn't file my taxes until this gets resolved... yippee! 

[naughtybear]

I was pretty sure the 'can't extend employment with PTO' was going to be the downfall because that's what it sounded like you were trying to do. Who decided to pay out PTO like this?

[Tennesseer]

Mardi Gras Audrey - it would not hurt to start writing up a complaint if you decide to go to your state labor department in the future.  

[milee]

I remember how hard it is when you have a little one at home - not sleeping is a killer.  So please take this as a positive suggestion and nothing more, since I know what it's like to be sleep deprived and foggy.  I'm going to be very direct not to be hurtful but because this keeps popping up even though several people have made gentle suggestions about it.

Your posts are rambling and contain a lot of irrelevant information.  It's sometimes tough to follow the important threads because there are constant tangents.  This is not helpful to you because you're not clearly communicating the main issue and because so many other unimportant issues are dragged in, that things get off track.  This could be hurting you in your discussions with HR.

When you talk to HR, stick to the one main goal and point here: you were under the good faith assumption that you were still a full time employee with benefits through November 30.  This assumption that you were still an employee is proven by both your own manager's emails and by the HR decision to not pay you your PTO in one lump sum as of 9/30/16, as is required by law, but to pay PTO in small amounts through November 30.  [Stop here.  No more. ]

No matter what topic or tangent HR responds with or you want to bring up, do not move on until you get this point settled.  No matter what HR says, if the rep says anything other than "OK, we'll record your termination date as 11/30/16", this is what you reply:  "OK, so are you admitting that the company broke the law by not paying all my PTO by xx/xx/xx?  Because the law required PTO be paid within 72 hours of the termination date, with a penalty equal to a day's wages per day the PTO isn't paid out.  So if I was terminated on xx/xx/xx and you didn't pay all the PTO out until 11/30/16, you will be paying this late penalty?"

Rinse and repeat.  Do not go on to any other subject.  Do not ask questions about other subjects.  Do not pass "go" until you get to a stopping point on this issue.  I think this approach has a good chance of driving your point home and getting them to agree to a 11/30/16 term date.  Only after the termination date is settled do you move on to talk about anything else, like receiving a refund of premiums.