How Can They Do This?

Empowering Individuals
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One of the first questions that we frequently receive from an individual who has recently been fired is the most obvious one – how can they possibly do this?

            I've been here 25 years.

 

            I'm a good performer.

           

            I just had a good review.

 

            They told me I'd be here for “the long run.”

Unfortunately, each of these reasons has something in common – it does not give you legal protection.

They can do “this” because under most circumstances you are considered an “at will” employee.  This means that you can be fired for no reason or any reason, despite longevity, good performance, positive reviews, or verbal assurances from a supervisor.  None of these generally changes the at-will employment relationship. 

But I've been here 25 years!

 

As frustrating as it may sound, even if you have devoted your entire career toward the company you can be let go at any minute.  Practically most companies try to avoid doing this, but without question it happens every single day – we know because we see it. 

The potential upside in this particular situation is that generally if you have worked for a company for 20+ years you are over the age of 50 and possibly over the age of 60.   This means that you are protected from discrimination based upon age, and it also means that often an employer – cognizant of this fact – will offer you a severance in exchange for a release from liability (your agreement that you will not sue for age discrimination).  Often the severance amount may be negotiated – particularly if you were terminated under suspicious circumstances (for example younger employees were not terminated).  We regularly handle these negotiations on behalf of employees.

 

I'm a good performer!

 

Being a good performer for a large company may earn you a free trip to the Caribbean for the annual meeting, but it does not generally guarantee you any future employment.  Corporations – and in particular supervisors – can be finicky.  We've seen lots of situations where an employee who is a very good performer on paper is terminated because he or she simply does not get along with a supervisor, because the team is “changing directions”, or because the supervisor is threatened by the employee's performance.  Never underestimate what those in positions of power will do to hold on to that power.

But I just had a good review!

 

As with being a good performer, receiving a good performance review is by no means a guarantee of future employment.  Quite simply the company has the right to fire people who are doing well – often against its own interest.

Of course, if you were a good performer, with a history of good performance reviews, we will often want to look at the larger picture, to try and determine if there is some underlying illegal reason for the action.  This is known as a pretext, and is a key factor in many discrimination cases.

They told me I'd be here for the long run!

 

Of course, they did.  This is a classic statement from owners/employers/managers around the world.  They want to reassure you, and in their defense, they often mean those words when they speak them. 

Unfortunately, however, these words rarely form any sort of binding obligation on the employer to actually keep you around for the “long run.”  The reality is that oral promises almost never create binding contracts of employment or modify the employment situation from at-will to something else.  And while there have historically been some rare exceptions where a written assurance of continued employment was determined to create an additional obligation on the employer, do not count on it.

The only way to truly get job security is to have your employer sign a formal, protective, employment agreement.  Employees often give up quite a bit in these agreements, however, so be careful what you wish for.

When They Can't Do It

Now, if you asked, “how can they possibly do this?” after you:

            Just returned from a medical leave.

 

            Just had a baby.

 

            Just made a complaint that my supervisor made several racist comments.

 

            Recently requested an accommodation for a disability.

Well, now the answer may be different.  Maybe they cannot do this, because despite the at will status of most employment relationships, employers are not permitted to terminate (or otherwise retaliate against) an employee because of some protected reason. 

I just returned from medical leave

 

When employees are terminated after returning from a medical leave the first things we want to know are the size of the company; how long they've worked for the company; and how many hours they worked the prior year.  This is because each of these factors plays a role in determining whether the employee has a claim for violation of the Family and Medical Leave Act (“FMLA”).

Regardless of whether the employee was eligible for or received FMLA leave, she may still have some protection – depending upon the reason for the absence – under the laws protecting against pregnancy discrimination and disability discrimination.  When an employee is disciplined or terminated following a medical leave this immediately raises red flags that require further investigation.

I just had a baby

Like the medical leave scenario, if you just had a baby or are returning from a pregnancy related leave and are terminated, red flags are raised.  It is critical to speak with an attorney about potential pregnancy discrimination or FMLA violations, as your employer may have violated the law. 

I just made a complaint about racist or other improper comments

 

We often see situations where an employee – typically but not always a Woman, Black, Muslim, Asian, or some other, non-White, non-Christian category – has been dealing with inappropriate comments from a co-worker or supervisor.  Most times the employee has dealt with the comments for quite some time before making a formal complaint, for fear that making the complaint will cost her a job. 

Then, of course, after the employee makes the complaint things go from bad to worse, and the employee is either fired for some made up (pre-textual) reason, or is treated very poorly in an effort to drive her out.  This is called retaliation, and it is illegal.  In many cases the initial complaint that the employee made is legally protected – whether because of race, religion, sex, sexual harassment, sexual orientation, age, disability or unpaid wages – which means that the employee is also generally legally protected by the same laws from retaliation. 

I recently requested an accommodation for a disability

As with complaints about racist or other inappropriate/illegal behavior, you are protected from retaliation if you request a reasonable accommodation for a disability.  Both the American's with Disabilities Act and the New York State Human Rights Law protect against retaliation for requests for reasonable accommodations, and further generally require employers to engage an employee in an “interactive process” to try and find a reasonable accommodation.  If they haven't done this, you may find yourself with a claim for disability discrimination or retaliation.

The above represent a very small set of examples of what employers can and cannot do.  If you have specific questions about how you were treated at work contact us today by filling out our employment questionnaire.  You may also request a free copy of our book, 5 Reasons Why Most Employment Discrimination Cases Fail, by clicking here.

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