• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Would I have a case for wrongful termination?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

legalassist

Junior Member
What is the name of your state (only U.S. law)? New York


Hello,

I have not been terminated, but I'm getting myself prepared in case b/c I don't trust my boss. Basically, where I work the upper management wants to rid of people who have been there longer than 5 years to make room for people that once worked with them at another company.

I was given two verbal warnings at my job. I didn't do anything bad as for my job performance, the subject of the two verbal warning meetings was that my boss felt I wasn't giving a 100 percent effort that I could do better. I told him I'm giving 95 percent. He tells me I'm an asset to the company and he wants to see me advance. He wants to see me as supervisor for my department, but has some reservations. I think it's b/c I won't "kiss" up to him. I do my work instead and hope to be recognized for that. The two meetings occurred within a month of each other. At the second meeting he said he didn't see any improvement, meanwhile again nothing happened and I've been still doing my job. I told him it was because of recent pay cuts since the last time we spoke and I wasn't motivated to give a 100 percent when my job isn't investing a 100 percent by giving me a competitive salary. About a month after the last verbal warning meeting I made a mistake at work, this time I actually did something wrong. I was written up for this matter and told that it was my final written warning. I had never been written up before so I asked how is this a final written warning? He said that he gave me two verbal warnings prior and could do whatever he wanted to. This is when I became aware that the two meetings prior were verbal warnings. At the time I thought they were just "pep talks". I was not told that at the time of either meeting that they were verbal warnings. Now as it stands my boss said if I make another mistake that I will be fired. I made one mistake and if I make another it will be two.

Is this legal? I believe they're looking for any reason to get rid of people and they have to resort to these tactics. Also is it legal to not give raises and say profit sharing will be given instead? By the way this is a private company in NY.

Thank you...
 


Zigner

Senior Member, Non-Attorney
What is the name of your state (only U.S. law)? New York


Hello,

I have not been terminated, but I'm getting myself prepared in case b/c I don't trust my boss. Basically, where I work the upper management wants to rid of people who have been there longer than 5 years to make room for people that once worked with them at another company.

I was given two verbal warnings at my job. I didn't do anything bad as for my job performance, the subject of the two verbal warning meetings was that my boss felt I wasn't giving a 100 percent effort that I could do better. I told him I'm giving 95 percent. He tells me I'm an asset to the company and he wants to see me advance. He wants to see me as supervisor for my department, but has some reservations. I think it's b/c I won't "kiss" up to him. I do my work instead and hope to be recognized for that. The two meetings occurred within a month of each other. At the second meeting he said he didn't see any improvement, meanwhile again nothing happened and I've been still doing my job. I told him it was because of recent pay cuts since the last time we spoke and I wasn't motivated to give a 100 percent when my job isn't investing a 100 percent by giving me a competitive salary. About a month after the last verbal warning meeting I made a mistake at work, this time I actually did something wrong. I was written up for this matter and told that it was my final written warning. I had never been written up before so I asked how is this a final written warning? He said that he gave me two verbal warnings prior and could do whatever he wanted to. This is when I became aware that the two meetings prior were verbal warnings. At the time I thought they were just "pep talks". I was not told that at the time of either meeting that they were verbal warnings. Now as it stands my boss said if I make another mistake that I will be fired. I made one mistake and if I make another it will be two.

Is this legal? I believe they're looking for any reason to get rid of people and they have to resort to these tactics. Also is it legal to not give raises and say profit sharing will be given instead? By the way this is a private company in NY.

Thank you...
It is absolutely legal. It may seem unfair, but unfair does not mean illegal.

Wrongful termination means your were terminated based on a protected characteristic.
 

cbg

I'm a Northern Girl
Yes, it is legal. The law does not take a stand on the matter of write ups. How they are handled is entirely up to the employer as long as they do not violate discrimination and related laws, and nothing you have posted suggests that they are violating any laws.

There is no Federal law and no law in any state requiring that an employer ever give raises. The sole exception would be if minimum wage was raised by an act of Congress or appropriate state legislation, in which case any employee who was earning less than the new minimum would have to have their wage raised to that same new minimum.

Nothing you have posted suggests that your termination, if that should come to pass, would be wrongful (illegal).
 
Nothing appears to be illegal. If its not related a protected category of discrimnation like sex, age, sexual orientation etc.. then they can behave poorly towards you. Doesn't make it right but do you really want to remain at a job that doesn't want you.
 

cbg

I'm a Northern Girl
FYI, sexual orientation is not currently a protected category at the Federal level, although it is protected in a number of states.

Also FYI, it is not true that the only form of wrongful termination is via protected characteristic unless you are interprting that term very broadly. In that case, other protected characteristics would include "people who apply for or use FMLA"; "people who file a workers comp claim"; "people who attend a union organization meeting" etc.
 
B

Blutodidit

Guest
I'm thinking that if Legalassist was given a handbook by his employer that asserts 'progressive discipline' where he must be given 2 written warnings before a final (3rd) written warning before termination, he might have a case for his employer's breach of contract.
 

Zigner

Senior Member, Non-Attorney
I'm thinking that if Legalassist was given a handbook by his employer that asserts 'progressive discipline' where he must be given 2 written warnings before a final (3rd) written warning before termination, he might have a case for his employer's breach of contract.
You'd be wrong.

And, even if he did have some sort of case (which he doesn't), what makes you think it would rise to the level of wrongful termination?
 

cbg

I'm a Northern Girl
And I am thinking that (first) few if any employee handbooks reach the level of a contract (second) that almost all employee handbooks have a clause allowing the employer to change, amend or modify their practices at will and (third) the poster did not mention any such thing.
 
B

Blutodidit

Guest
You'd be wrong.

And, even if he did have some sort of case (which he doesn't), what makes you think it would rise to the level of wrongful termination?
A breach of contract by anyone (not just employers) would allow the one who was damaged, to recoup losses as a result of the breach of contract. In this case, there could be economical losses sustained by Legalassist if he is fired before the due process as explained in a handbook that may assert 3 written warnings before termination. Of course, most such handbooks explain circumstances where an employee can be fired immediately for some profound violation of a company policy, but I believe you can arguably call such a handbook a written contract. If you would litigate such matter, it would fall on the Court to decide.
 

cbg

I'm a Northern Girl
I believe you can arguably call such a handbook a written contract.

You are free to argue such - however, given the number of times a handbook has been found NOT to be a contract, the odds are about 10,000 -1 that you'd be wrong.

And, once again, there is no evidence that any such progressive discipline policy exists.
 

Ladyback1

Senior Member
A breach of contract by anyone (not just employers) would allow the one who was damaged, to recoup losses as a result of the breach of contract. In this case, there could be economical losses sustained by Legalassist if he is fired before the due process as explained in a handbook that may assert 3 written warnings before termination. Of course, most such handbooks explain circumstances where an employee can be fired immediately for some profound violation of a company policy, but I believe you can arguably call such a handbook a written contract. If you would litigate such matter, it would fall on the Court to decide.
the majority of handbooks I have read (and I've worked private industry, city and state govt. positions) have explicitly stated that the handbook is not a contract of employment.
Furthermore, most handbooks have a nifty little clause buried somewhere in them that gives hiring/firing/disciplinary actions to the discretion of supervisor/HR Dept. Kind of like that line in most job descriptions "other tasks as assigned".
 

Zigner

Senior Member, Non-Attorney
A breach of contract by anyone (not just employers) would allow the one who was damaged, to recoup losses as a result of the breach of contract. In this case, there could be economical losses sustained by Legalassist if he is fired before the due process as explained in a handbook that may assert 3 written warnings before termination. Of course, most such handbooks explain circumstances where an employee can be fired immediately for some profound violation of a company policy, but I believe you can arguably call such a handbook a written contract. If you would litigate such matter, it would fall on the Court to decide.
Well, that explains your (almost definitely incorrect) viewpoint that this may be a breach of contract matter. But, you've ignored your definitely incorrect assertion that this would be construed as a wrongful termination.


Haven't you been told to stop guessing?
 
B

Blutodidit

Guest
I believe you can arguably call such a handbook a written contract.

You are free to argue such - however, given the number of times a handbook has been found NOT to be a contract, the odds are about 10,000 -1 that you'd be wrong.

And, once again, there is no evidence that any such progressive discipline policy exists.
Are you simply throwing out numbers here or are you basing your stats on actual documentation that the odds are "10,000--1 that I'm wrong? Also, do you have actual experience to be able to say a handbook has been found numerous times, "NOT to be a contract?" I'd be interested in your source that documents such numbers.
 

Zigner

Senior Member, Non-Attorney
Are you simply throwing out numbers here or are you basing your stats on actual documentation that the odds are "10,000--1 that I'm wrong? Also, do you have actual experience to be able to say a handbook has been found numerous times, "NOT to be a contract?" I'd be interested in your source that documents such numbers.
That's not the way it works around here. You made the initial assertion, not it is on you to post cites to cases (in the OP's state) that have held that a simple employee handbook will rise to the level of a contract.
 
B

Blutodidit

Guest
the majority of handbooks I have read (and I've worked private industry, city and state govt. positions) have explicitly stated that the handbook is not a contract of employment.
Furthermore, most handbooks have a nifty little clause buried somewhere in them that gives hiring/FIRING/disciplinary actions to the discretion of supervisor/HR Dept. Kind of like that line in most job descriptions "other tasks as assigned".
I disagree that "MOST handbooks have a nifty little clause buried somewhere in them that gives 'HIRING' actions to the discretion of the Supervisor."

I've never worked where a Supervisor was allowed to hire anyone. Maybe the Supervisor could be influencial in the hiring of someone, but hiring is usually up to the Plant Manager or someone above the Supervisor.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top