Employment law discrimination?

Employment Law - Wrongful Termination, Discrimination?

• Hi, there, I am looking for a legal advice/service regarding ‘wrongful termination’, ‘employment discrimination’ or whatever nearest employment law category the issue may fit in. On December 31, 2000 I was laid off because of the downsizing of the particular department in the company I was working for. There were 10 staffers in that department, one got sa(u)cked – me. Immediately I was offered a freelance agreement to perform exactly the same type of work – 75 percent of my previous load for about a quarter of what I was earning and no benefits. I accepted because at the time I couldn’t find another job and had high credit card bills to pay. This didn’t work though and later I had to fill for chapter 7 personal bankruptcy. For my naturalization interview I asked the HR department of the company to write a letter of support. They did and while in negotiations over the content of the letter several email messages regarding my naturalization interview were forwarded to me. My guess is that some of the messages were not intended for me to read but because of the negligence or else the HR Department forwarded them to me. One of the messages written by the Director of Administration of the company (it employs full-time over 500 people with more working as consultants, contractors or freelancers) referring to my termination states that ‘basically he was terminated because he was the least talented and least hard-working in the whole department’. There are official annual evaluations of the quality of work of all employees of the company. For the time I worked full time with the company I firmly believe and it is reflected in the evaluations that I was not ‘the least talented and least-hard working’ in that department. Besides, because of the specifics of my job I believe there are other ways to evaluate the quality of my work. I sincerely believe that then and now too it is not ‘the least talented and least hard-working’. My contract was the so called open contract – the employer can fire you without giving a reason with two-week notice. My question, given the circumstances, is there any ground for me to believe that it was ‘wrongful termination’. If so – what are my venues for recourse and what can I expect. Also – what about the stature of limitations? For confidentiality reasons I do not give my real name nor the name of the company. Should anyone need more details/clarification to respond – please contact me through email. All responses will be appreciated. Thank you.

• Answer:

  Hello biggerbule-ga, I’m sorry about the tough situation you face. Getting laid off is difficult to accept even when you see it coming, even when the reasons for it are completely impersonal, even when hundreds of others around you are getting laid off too. It’s even tougher when you feel that you were treated unfairly or that you were singled out for arbitrary reasons. With your financial difficulties and handling the naturalization bureaucracy it sounds like you definitely had your hands full. I will help you think through your options about getting your old job back. Please understand that I am not a lawyer and cannot give you legal advice. I urge you to talk to an attorney and get professional help for your complete peace of mind. My experience includes working in labor relations and human resources so I have a good grasp of the issues involved in your situation. I hope to give you an overview of the questions you may want to take to a lawyer. ================ SUMMARY OF FACTS ================ First, let me summarize my understanding of the facts as you’ve set them out. 1) You were involuntarily terminated from your employment on 12/31/00. 2) Your employer called this termination a layoff and considered it a part of downsizing your department and the company. 3) You were the only one laid off from a department of 10 people. (You don’t say how many people got laid off from the whole company.) 4) The company immediately offered to rehire you as an independent contractor. 5) The new job’s workload is about 75% of your prior job and pays 25% of your prior pay and offers no benefits. 6) You accepted the contractor job and have been working at it ever since. 7) Some time after you were laid off you corresponded with the HR department about documentation for your naturalization interview. 8) In the course of the correspondence with HR someone sent you some messages that they might not have meant to share with you. 9) One of these messages was from the Director of Administration and included a remark about you that said “basically he was terminated because he was the least talented and least hard-working in the whole department.” 10) The company has an annual performance review process. 11) Your reviews while you were an employee did not reflect the dissatisfaction shown by the Director of Administration’s remark. 12) You believe there were other criteria that could have been included in your annual review. 13) You were working with an employment contract that was an “at will” contract. (It is not clear if this is a formal contract you signed or simply company policy.) 14) Your employment contract required two weeks notice for termination. 15) You want to know whether you can establish grounds for “wrongful termination.” 16) You want to know if there is an applicable statute of limitations. 17) You want to know whether a claim of discrimination might be applicable. 18) You want to know in what jurisdiction you should pursue your claim. ==================== WRONGFUL TERMINATION ==================== You are asking whether you might have a claim of discrimination or wrongful termination against your employer. I will discuss both these issues and show how they’re related. “Wrongful Termination” is a term that applies when an employee was fired illegally because the termination was against a Federal or state law, regulation or constitutional provision. Some terminations may be unfair, mean, and unethical but might not meet the standard for being considered wrongful or illegal. You mentioned that your contract was a “so called open contract.” Such contracts are called “employment at will” contracts. When you work in an “employment at will” state it means that the employer can fire you at any time for any reason that is not illegal. Reciprocally, you can also quit anytime for any reason. The full extent of the applicability of the “at will” principle is governed by state laws. An employment contract stating other terms for termination will supercede the “at will” provisions of your state. There are some limitations on “at will” terminations and the violation of these limitations is what gives grounds for a “wrongful termination” claim. Contract Violations Most of the time employment contracts are applicable in a unionized company. Some companies also have employees sign a written contract setting out the conditions of employment which may spell out the grounds and procedures for termination. In recent years companies have avoided such contracts and have usually stuck with a strong “employment at will” provision. There has been a history of litigation on claims of implied employment contracts based on company policies or verbal agreements. If someone believes that an employment contract was violated they have a claim for “breach of contract” not “wrongful termination.” Your discussion of the company evaluation process leads me to think you might want to consider a “breach of contract” claim. I will discuss this below. Discrimination Statutes There are a variety of discrimination statutes that protect employees against discrimination in adverse actions, including termination, because of age, race or national origin, gender, disability or medical condition, and other protected categories. You mentioned that you were applying for naturalization but you did not say that you thought you were discriminated against because of your national origin. The information you provided does not indicate that you intend to pursue a “wrongful termination” claim based on discrimination. Public Policy and Retaliation Statutes There are a number of statutes that protect employees against retaliation by their employers because the employee chose to perform a legal duty or exercised a legal right. These protections include: employees who are whistleblowers who reported illegal activity of the employer to a government agency, filed a discrimination complaint or filed for workers' compensation, took time to fulfill jury duty, claimed overtime pay or limited hours of work, or refused to do something illegal on the employer’s behalf. There are many employee protection statutes that fall under the public policy umbrella. The information you gave in your summary does not indicate that you think your employer was retaliating against you for any reason or violated any public policy provisions. ========================== TERMINATION FOR GOOD CAUSE ========================== If no contractual agreement supercedes the “at will” provisions of employment in your state, the next step is to consider the laws and regulations that govern what constitutes “good cause” (aka “just cause”) for employee discharge in your location. Through the years there has been an erosion of the absolute “employment at will” principle promulgated by "Wood’s Rule" which allowed firing an employee for "good cause, for no cause, or even for cause morally wrong." “Good cause” is the all-embracing term for terminating employees for legal reasons. Implementing good cause provisions requires that decisions affecting employees be based on the legitimate business-related interests of the employer. How this principle is applied varies greatly from state to state. Most states have laws that cover terminating employees whose behavior is unacceptable or whose performance does not meet requirements. Most states also have provisions for allowing the employer to discharge employees for business reasons, including: lack of work, relocation of the place of work, closing down the business, reorganizing operations, or financial considerations. Most layoffs are justified as caused by business reasons and fall under the “terminations for good cause” requirements. You did not raise any issues about contesting your employer’s right to lay you off for business reasons. The only remaining consideration is whether your employer’s evaluation of you as “the least talented and least hard-working in the department” violates dismissal for “good cause” laws, regulations and policies in your state. The first consideration is whether your employment contract addresses the subject of employee performance and provides for progressive discipline for bad performance. If your company has a policy for progressive discipline and they did not follow that policy, you may have cause for a “breach of contract” claim if it’s in your employee contract or a “wrongful discharge” claim if the company did not follow its formal policies. If your company does not have a formal performance and progressive discipline policy, the case law in your state will govern. In most states it is extremely unlikely that you would have a case. For example, in a California case (Jensen v. Hewlett Packard Co. (1993) 14 Cal.App.4th 958, 970.) the employer won in a suit about "False Evaluation." They said: "Employers should neither be required to justify performance evaluations by reference to objectively provable facts, nor subjected to fear of liability for good faith, but mistaken, judgments about the value of an individual employee to the business enterprise." In effect, the judgment said that even if the manager was wrong in his opinion of the employee’s work, the employee did not have grounds for a suit. I don’t know what state you live in, but it is likely that similar interpretations of the law apply in your state as well. So, your questions about the possibility of using the Director of Administration’s remark about your performance in the document you inadvertently received is not likely to be enough grounds to pursue a claim for “wrongful termination.” Thus, the question of statute of limitation becomes moot. As I said before, I’m not a lawyer and I advise you to find a good attorney who specializes in employment law and get an informed opinion about your situation. Below, I’ve included an assortment of links to help you investigate further. Please ask for clarification on any of this if you need further information. I wish you success in your current job and best wishes for finding a more rewarding one. czh ========================== WRONGFUL TERMINATION LINKS ========================== http://www.fairmeasures.com/wrongful.html Wrongful Termination FAQ http://jobsearchtech.about.com/library/weekly/aa102300.htm Wrongful Termination What Constitutes Wrongful Termination? http://jobsearchtech.about.com/library/weekly/aa092402-3.htm Employment at Will U.S. Federal Laws Limiting Employment at Will Age Discrimination in Employment Act of 1967 Americans with Disabilities Act of 1990 Bankruptcy Act of 1978 Civil Rights Act of 1964 Civil Rights Act of 1991 Civil Service Reform Act of 1978 Consumer Credit Protection Act of 1968 Employee Polygraph Protection Act of 1988 Employee Retirement Income Security Act of 1974 Fair Credit Reporting Act of 1999 Fair Labor Standards Act of 1938 Family and Medical Leave Act of 1993 Immigration Reform and Control Act of 1986 Judiciary and Judicial Procedure Act of 1948 Labor Management Relations Act of 1947 Mine Safety and Health Act of 1977 Railroad Safety Act of 1970 Rehabilitation Act of 1973 Vietnam Era Veterans' Readjustment Assistance Act of 1974 Whistle Blower Protection Whistleblower Protection Act of 1989 Worker Adjustment and Retraining Notification Act of 1988 http://www.leefeldmanlaw.com/wrongfultermination.html Wrongful Termination http://laborlawoffice.com/WrongTerm.shtml Wrongful Termination —Frequently Asked Questions http://www.imakenews.com/techyvent/e_article000064674.cfm Lawsuits from Layoffs Guidelines for Staying Out of Court and Maintaining Morale; RIFs Don't Have to Lead to Rifts A. Make Sure There Is A Valid Reason for the RIF B. Consider Alternatives to a RIF C. Develop The Criteria For Termination Decisions D. Review All Employment Policies and Procedures Which May Affect the Decison E. Consider What Benefits To Provide To Employees Who Are RIF’ed F. Informing the Employee G. Alternate Dispute Resolution http://www.look4law.com/topics/WrongfulTermination.asp What are public policy exceptions? Often, courts have held that for certain public policy reasons, employees should not lose their jobs under the employment-at-will doctrine. http://www.frascona.com/resource/jhl494wt.htm There are currently two exceptions to the common law at-will rule based upon the legal principles of "public policy" and "implied contract." http://www.wetfeet.com/employer/articles/article.asp?aid=389 Best Practices for Employee Termination http://www.fairmeasures.com/newsletter/archive/spring93.html#EWF Employer Wins "False Evaluation" Case "Employers should neither be required to justify performance evaluations by reference to objectively provable facts, nor subjected to fear of liability for good faith, but mistaken, judgments about the value of an individual employee to the business enterprise." In other words, even if the manager was wrong, he couldn't be sued. Jensen v. Hewlett Packard Co. (1993) 14 Cal.App.4th 958, 970. http://www.boeschlaw.com/justcause.html Why (and how) Indiana Should Adopt Good Cause Termination to Replace Employment-At-Will The first few pages of this paper give you an excellent overview of the issues. =============== SEARCH STRATEGY =============== wrongful termination wrongful termination layoff layoffs legal requirements wrongful termination public policy