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 | If you are fired from a job
you worked at for fifteen years and did not dispute the termination right
away, how long do you have before it's too late to fight for that job?
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| There is not a single answer
to this question because it all depends on the legal basis upon which you
will be fighting for the job. The length of your employment, however, will
not affect the question of how long you have in any way. Each legal claim
that may enable you to fight for your job has its own time period during
which you may assert it. Once that time period has passed you can no
longer fight on that basis. These time periods are set either by Statutes
of Limitations, which vary from State to State and are often different for
different statutes even within the same State, or by contractual language,
if your job was covered by a union contract or a personal employment
contract. Most of limitations periods that apply to unlawful termination
are quite short. Many federal laws, for example, require that claims be
brought within six months.
Union grievance procedures, which
are often the most effective way to fight an unjust termination, may
require a grievance to be filed within only a few days of the discharge.
There are, however, other causes of action that might apply to a discharge
situation under your contract or tort law and which would have a
limitations period measured in years. Thus, anyone who has been fired
should consult as quickly as possible with her or his union, if there is
one, and/or with a knowledgeable employment attorney, in order to have the
greatest choice of possible legal theories available in the effort to
fight the termination. Even if a fairly long period has passed, however, a
knowledgeable attorney may be able to find a way to fight the termination,
depending upon the facts of the case. |
| This response provided by
Bennet Zurofsky of The Law Offices of Reitman
Parsonnet, PC |
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| I know my employer is falsifying business
documents and charging clients for services that are not being performed.
However, it is being done in a way that makes it look as if the employees
are originating the false information. What can employees do? If we do
anything to put a stop to the fraud, we will be fired. If clients find out
they are being cheated and he is sued, he will probably just close the
company and disappear. Either way it is the employee who pays the price.
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| As a practical matter, you are in a very difficult
position which will require you to balance your legal and moral concerns
against your need for this job. From a criminal law perspective, you may
be guilty of fraud and/or some sort of conspiracy to conceal fraud unless
you take steps to end your employer's illegal conduct or quit your
employment. If your boss is, in fact, requiring you to engage in or
conceal criminal conduct then it will not be a defense that you were only
following orders. From a civil law perspective, it is possible that you
could be sued for money damages by a victim of the fraud. From the facts
that you have given, I cannot properly evaluate the likelihood of whether
you would ever be sued or prosecuted or even whether what your boss is
doing amounts to criminal activity or civil fraud. However, an employee
who believes that their boss' conduct is making them a party to criminal
or civil fraud can either quit, do what they can to change their
employer's ways, or bring the matter to the attention of proper law
enforcement authorities. *In some States*, the law protects
an employee who is fired or otherwise retaliated against because he or she
has blown the whistle on an employer's illegal conduct or has refused to
participate in such conduct. However, the possibility of eventually
winning such a lawsuit is of little value if, as your presentation of the
facts suggests, your employer disappears and leaves you with no way to
collect the judgment. I urge you to seek the advise of a knowledgeable
labor and employment attorney so that you may carefully review your
situation before you make any decision as to how you will proceed. With
the help of that attorney you should explore such issues as whether the
conduct you are concerned about really is criminal or illegal in any way;
what consequences, if any, you may face as a result of your involvement in
knowledge of that conduct; what duty, if any, you have to report your
employer conduct to the appropriate authorities; and what remedies, if
any, your State's law provides for conscientious employees who are
retaliated against by their employer for taking steps to end the
employer's unlawful conduct. |
| This response provided by
Bennet Zurofsky of The Law Offices of Reitman Parsonnet, PC
*Kentucky provides protection for workplace "Whistleblowers"
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| I was fired for not sending trucks to a dealer for
repair when I had the permission of my supervisor to not send them. The
boss of the company fired me not having sent them. I was paid for 2 weeks
vacation and also for the full week I had worked. Is this legal?
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Without a union contract or a
written personal employment contract limiting the company's right, private
sector jobs are considered to be
employment at will
by the courts. This means that you are free to quit at any time
for any reason or for no reason and that the boss is free to fire you at
any time for any reason, including unjust, arbitrary or capricious
reasons, or for no reason.
This obviously inequitable doctrine stems from the old British Common Law
of Master & Servant, whereby the servant was employed purely at the
pleasure of the master and could therefore be dismissed whenever the
master was displeased without prior notice or any recourse.
Although the harshness of pure employment at will has been somewhat
moderated by statutes and judicial decisions in ways that vary in each
State, the basic doctrine still prevails throughout the Country. Aside
from contractual limitations, the principal exceptions to the doctrine are
those created by statutes, especially Federal and State laws prohibiting
discriminatory discharge for such reasons as race, gender, national
origin, disability, support of union organizing activity, and
whistleblowing.
The illegal reasons listed here are not all inclusive and the laws
defining what reasons are illegal vary from state to state, except for
when a federal statute is involved. Under almost all of these statutes,
the burden is on the discharged employee to prove that she or he was fired
due to the illegal reason. It is often difficult to determine whether the
particular circumstances of your termination will give rise to a legal
claim against your former employer. From the few facts presented in this
question, it seems unlikely that any of the exceptions to the employment
at will doctrine would apply, but all of the surrounding circumstances
need to be explored before an answer can be given with any certainty.
Thus, anyone who has been fired should consult with her or his union, if
there is one, or with a knowledgeable employment attorney. |
| This response provided by
Bennet Zurofsky of The Law Offices of Reitman Parsonnet, PC |
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An employee had surgery and
afterwards got a post-operative infection which used all of their FMLA
time. Right before they were to return to work, they had a heart attack.
The employee was terminated because they had no FMLA time left. Their
employer has short and long term disability, so was it legal to
terminate them?
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The Family and Medical Leave Act ("FMLA") requires
covered employers to allow eligible employees a total of 12 weeks of
leave during any 12-month period for a serious health condition that
makes the employee unable to perform his or her job. If an employee is
unable to return to work at the end of the employee's leave entitlement,
his or her employer's obligation under the FMLA ceases and the employer
may assign an employee to a different position or deny reinstatement
entirely. Short term and long term disability plans do not require an
employer to grant restoration rights beyond the FMLA leave period.
However, an employer may have additional obligations under other
state laws or a collective bargaining agreement entered into between the
employer and a labor union that require additional job-protected leave.
Moreover, the employer may have obligations under Title I of the
Americans with Disabilities Act ("ADA"), a federal law, to provide
reasonable accommodations to the employee that will enable the employee
to return to work. The ADA prohibits employers of 15 or more employees
from discriminating against a "qualified individual with a disability"
who, with or without reasonable accommodation, can perform the essential
functions of their job. An individual with a disability includes an
employee who has a physical or mental impairment that substantially
limited one or more major life activities. Under the ADA, an employer
must provide a reasonable accommodation to the physical or mental
limitations of an employee with a disability unless the employer can
establish that the accommodation would impose an "undue hardship" on the
employer. Many states also have laws prohibiting discrimination against
employees on the basis of disability, and these state laws may apply to
more employers than does the federal law. |
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This response provided by
Jessica Leaven of Patterson Harkavy |
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