Probable Wrongful Termination: Need Advice

[LibertasVeritas]

What is the name of your state (only U.S. law)? Florida

I'm writing on behalf of a close friend. She was recently fired from her position as a server at big-name casual restaurant by a visiting area director. What doesnt make sense is that she is well known as a good worker, has never had any disciplinary action taken against her, and the reason she was fired (over the phone, after she had finished her shift...) was because she was "taking order notes on her own paper instead of the company-approved order pads". She was never asked to correct the behavior. She was given no warning, and was the only person fired that day, although multiple employees were publicly berated by the visiting area director. When the area director threatened her job upon finding that she was not using the approved paper, she immediately started using it. He let her finish the shift and ordered her to call the store's general manager the next day, only to find out that she was fired at the area director's order.

I think that there is a strong possibility of wrongful termination because the company disciplinary guidelines were most likely not followed. She is nearly positive she signed a "3 strike" discipline code (verbal warning, written warning, termination). Further, she was the only person fired that day, and also the only female threatened with termination. Multiple male employees were berated and embarrassed in front of their peers by the area director that day, and none were fired. I have less certainty on this, but believe that the termination may have been an act of gender discrimination as well.

Finally, she has been trying to get a copy of her employee file (personnel file), or at least the documents in it that she signed, and the company is refusing her requests completely.

She has followed the proper chain of command to attempt to appeal the decision, but has been met by derision and condescending commentary by both the area director himself and his immediate superior. The final step for her will be speaking with the company's VP for HR, although it was by his order that her employee file be kept from her.

She feels run-around, mistreated, and at wit's end in this economy without a job. She no longer trusts the company and does not wish to work for them any longer, but feels entitled to remuneration for lost wages at the very least.

I would greatly appreciate any advice on this situation. Specifically, is mediation an option here? Is this a case suitable for litigation? What are the odds of her finding a lawyer in Central Florida to work this case on a contingency basis? Thanks in advance for knowledgeable replies.What is the name of your state (only U.S. law)?

 

[cbg]

A wrongful termination means that there is a specific law which prohibits the employer from firing the employee for the reason he did. There is no law prohibiting the employer from violating their own guidelines. What law do you believe exists which would have prohibited this termination?

Nothing in either Florida nor Federal law requires that the employer allow her to inspect her personnel file.

 

[Antigone*]

What is the name of your state (only U.S. law)? Florida

I'm writing on behalf of a close friend. She was recently fired from her position as a server at big-name casual restaurant by a visiting area director. What doesnt make sense is that she is well known as a good worker, has never had any disciplinary action taken against her, and the reason she was fired (over the phone, after she had finished her shift...) was because she was "taking order notes on her own paper instead of the company-approved order pads". She was never asked to correct the behavior. She was given no warning, and was the only person fired that day, although multiple employees were publicly berated by the visiting area director. When the area director threatened her job upon finding that she was not using the approved paper, she immediately started using it. He let her finish the shift and ordered her to call the store's general manager the next day, only to find out that she was fired at the area director's order.

I think that there is a strong possibility of wrongful termination because the company disciplinary guidelines were most likely not followed. She is nearly positive she signed a "3 strike" discipline code (verbal warning, written warning, termination). Further, she was the only person fired that day, and also the only female threatened with termination. Multiple male employees were berated and embarrassed in front of their peers by the area director that day, and none were fired. I have less certainty on this, but believe that the termination may have been an act of gender discrimination as well.

Finally, she has been trying to get a copy of her employee file (personnel file), or at least the documents in it that she signed, and the company is refusing her requests completely.

She has followed the proper chain of command to attempt to appeal the decision, but has been met by derision and condescending commentary by both the area director himself and his immediate superior. The final step for her will be speaking with the company's VP for HR, although it was by his order that her employee file be kept from her.

She feels run-around, mistreated, and at wit's end in this economy without a job. She no longer trusts the company and does not wish to work for them any longer, but feels entitled to remuneration for lost wages at the very least.

I would greatly appreciate any advice on this situation. Specifically, is mediation an option here? Is this a case suitable for litigation? What are the odds of her finding a lawyer in Central Florida to work this case on a contingency basis? Thanks in advance for knowledgeable replies.What is the name of your state (only U.S. law)?

If I were a betting woman, I'd bet the balance in my 401(k) that she is on a wild goose chase.

Jobs like hers come and go. This one went - get a new one.

 

[LibertasVeritas]

Thank you, cbg, for your timely response.

I am not certain of any law that would expressly prohibit her discharge, however, I think it would be easy to prove disparate treatment in the given situation. Does that get us anywhere?

I'm aware that there is no law requiring her personnel file to be turned over, but what of the documents in the file that she has signed? Is there nothing that would enable her to get a copy of documents bearing her signature? Aren't those type of documents considered to be legally binding? Shouldn't she have access to a record of them, at least?

Also, if anyone can advise me on possibly going the mediation route here, I'd appreciate it. Can she ask for remuneration via mediation, or would litigation be required?

 

[Antigone*]

Thank you, cbg, for your timely response.

I am not certain of any law that would expressly prohibit her discharge, however, I think it would be easy to prove disparate treatment in the given situation. Does that get us anywhere?

I'm aware that there is no law requiring her personnel file to be turned over, but what of the documents in the file that she has signed? Is there nothing that would enable her to get a copy of documents bearing her signature? Aren't those type of documents considered to be legally binding? Shouldn't she have access to a record of them, at least?

Also, if anyone can advise me on possibly going the mediation route here, I'd appreciate it. Can she ask for remuneration via mediation, or would litigation be required?

There is nothing to mediate. There is nothing to litigate. The only thing left to do is close this chapter in her life and start a new one.

 

[cbg]

No, there is no basis in either Federal or state law to entitle her to any documents in her personnel file, whether she signed them or not. Federal law takes no position on the subject. Your state has no provisions for her to have access to the file, period. I don't say I agree with that position, but that's the way it is in Florida and quite a number of other states. To the best of my knowledge, only in CA does the presence of her signature make a difference to her access.

Is she prepared to show that she was fired ONLY because she is female? That but for her gender, she would still be working?

 

[LibertasVeritas]

wirelessany1, thanks for the reply. If the job market were a little more inviting, I think it would be less of an issue for her financially. She is looking at the possibility of eviction, loss of her car... scary stuff. Finding a job in the service industry is getting increasingly difficult in Central Florida.

Additionally, she feels mistreated and knows that many other employees of this company feel the same way about this. This is more of an ethics issue most likely, but a serious one. The employees feel beaten and powerless when off-site management comes in and threatens and embarrasses them. Especially post-termination, when she has made every effort to follow the rules and maintain decorum, she was repeatedly shut down. I know that our justice system isn't really about justice, but a little human decency goes a long way.

 

[LibertasVeritas]

Is she prepared to show that she was fired ONLY because she is female? That but for her gender, she would still be working?

I'll have to talk to her, but let's assume for the sake of discussion that she is. I'm certain that you could label the termination "disparate treatment", but I fear she may have a harder time proving that it was based on gender alone.

Many other employees were singled out that day, as I said, and she was the only female. She was also the only termination as a result of the area director's visit. That is pretty much the only proof I can see in the situation, and it doesn't seem like enough to me.

 

[cbg]

You're right; it's not.

While she cannot be fired BECAUSE she is female, she can be fired in spite of it. It's not enough to say that she was fired and a male employee wasn't - she needs a basis to show that she would not have been fired if she were male. If only one employee was fired, that employee has to be either male or female.

I used this example earlier in the day to someone else. About a year ago my then-boss called me while I was on my way to work and said, don't come in, I don't have any work for you. I knew he was telling the truth because the nature of my job was such that I really only had enough work to keep me busy during the busy season, and the busy season had ended the week before. I was the only female in the company and other than the owner, the only employee over 40. But I wasn't laid off because I was female or because I was over 40 - I was laid off in spite of those factors.

Do you see what I'm getting at?

 

[ecmst12]

The law does not require that all employees be treated exactly the same. It only requires that any difference in treatment not be due solely to one of a few protected reasons.

 

[LibertasVeritas]

Thanks for the advice, cbg. I do understand what you mean.

As far as moving forward, the only advice I've seen so far is "move on". I'm really interested in mediation for her. I think that given the opportunity to sit down face to face with the area director (a real passive-aggressive jerk) and a mediator, that some kind of peace could be found for her. Anyone have advice on how to go about setting this up, or if it would be worth the hassle? I think she wants to see the company reprimanded for poor treatment of the employees as much as she wants compensation for lost wages.

 

[las365]

I think that given the opportunity to sit down face to face with the area director (a real passive-aggressive jerk) and a mediator, that some kind of peace could be found for her. Anyone have advice on how to go about setting this up, or if it would be worth the hassle? I think she wants to see the company reprimanded for poor treatment of the employees as much as she wants compensation for lost wages.

Others have already said it, but I'll say it again. She doesn't have a claim under exisiting employment law. She was fired for insubordination that she admits to. Since she doesn't have a claim, she has no basis for a mediation.

If it is peace she seeks, she needs counseling. If she wants the company to be reprimanded (by whom?) for treating employees poorly - but not illegally - it isn't going to happen.

She may (may) be able to get unemployment benefits if she didn't have prior write-ups. That decision is made by her state's unemployment commission. A finding that she is entitled to unemployment beneifts is not the same thing as a finding of wrongful termination.

If she feels so strongly, I suggest that she seek information about the law and her (lack of) recourse herself. U.S. Equal Employment Opportunity Commission (EEOC) is a good place to start.

 

[FLRD]

While I'm not an attorney I have been in the workforce in FL for over 20 years as an entry level employee to business owner to now upper management with a mid-size national co so I have a little insight into FL employment.

Other have given you some very good advice and while I can certainly understand your concern for your friend the thig that you need to remember is that FL as many other states are "at will employment" in other words you are free to end your employment for any reason like wise your employer may end your employment for any reason not prohibited by law. In other words your friend could have just as easily been fired if the Director didn't like her hair, make up, shoes, attitude etc. In other words your friend has NO claim about the only thing she can do is file for unemployment and see what the state determines. There is no state mandated mediation she was fired for a reason even if she doesn't agree with it or even if it wasn't fair. I can tell you that the vast majority of employees who I have had to let go felt it was unfair even when they were in gross violation of a company policy.

Also remember upper management in this case the Area Director's job is not to make friends at the stores but to ensure that the business is running smoothly, making a profit and adhering to company policy. From your post it sounds as if there were some issues at this particular location that he felt he needed to address.

Tell your friend to file for unemployment and move on as I highly suspect that this chapter for her with this employer is over.