to be fired or resign?

I will start out briefly, my 63yr old Mother was offered the choice of after 16 yrs of hard working service to either resign and wow get a whole weak of pay or be fired.
My Mother asked for a copy of her personal file with the employer and was told she could not have it without a subpena, does anyone know if this is the case? I was under the impression that this was a matter of public record. We are in Texas by the way.
When she calls in today to advise them of her decision which by the way I can tell you she will not resign because she does not agree with the accusations which so far are verbal and not in writing, can she request, and is she entitled to a written version of why she was let go?
A couple of other issues into play here - she was in an accident on her job recently and was receiving workmans comp for her medical issues related to the accident, how will this work?
Any advice would be greatly appreciated and I will gladly answer any other questions and if I don't know the answer will get for you.
Thanks

No, personnel files are NOT a matter of public record. Would you want the general public to be able to go rooting around in your personnel file?

Before we go any further, it is important to know whether or not your mother works for the government in any capacity, or if she is employed in the private sector. I also need to know if she is a teacher, a firefighter or a police officer. It makes a difference to the answers to some of your questions.

My Mother asked for a copy of her personal file with the employer and was told she could not have it without a subpena, does anyone know if this is the case?

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Records such as this are private property and do NOT belong to the employee, rather the employer.

I was under the impression that this was a matter of public record.

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You are under the wrong impression.

When she calls in today to advise them of her decision which by the way I can tell you she will not resign because she does not agree with the accusations which so far are verbal and not in writing, can she request, and is she entitled to a written version of why she was let go?

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Of course she can request a written version and the company is well within their rights to deny her.

A couple of other issues into play here - she was in an accident on her job recently and was receiving workmans comp for her medical issues related to the accident, how will this work?

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Unless she is being fired BECAUSE she filed a WC claim it's irrelevant.

Have momma file for unemployment. Then the employer can explain why she was fired. If she is denied then she can appeal and file for a subpoena duces tecum for the records.

Belieze, while you are correct as to ownership, in Texas some positions do have a statutory right to see their personnel files, and do have a statutory right to see any negative performance reviews or any negative records. That's why I'm asking for clarification of her status.

cbg said:

Belieze, while you are correct as to ownership, in Texas some positions do have a statutory right to see their personnel files, and do have a statutory right to see any negative performance reviews or any negative records. That's why I'm asking for clarification of her status.

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Hi sweetie. tell hubby you have a date tonight
And I posted before you did, you just beat me to the button

cbg said:

No, personnel files are NOT a matter of public record. Would you want the general public to be able to go rooting around in your personnel file?

Before we go any further, it is important to know whether or not your mother works for the government in any capacity, or if she is employed in the private sector. I also need to know if she is a teacher, a firefighter or a police officer. It makes a difference to the answers to some of your questions.

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Thanks for replying so quickly.
She is employed by the private sector. She works for a childrens home and her job title is 'home parent'. She worked as a parent in a home of children whose parents were not able to take care of them for various reasons. So its not like working 8hrs and going home, hence the 8 days on and 4 days off schedule.

BelizeBreeze said:

Records such as this are private property and do NOT belong to the employee, rather the employer.


You are under the wrong impression.


Of course she can request a written version and the company is well within their rights to deny her.


Unless she is being fired BECAUSE she filed a WC claim it's irrelevant.

Have momma file for unemployment. Then the employer can explain why she was fired. If she is denied then she can appeal and file for a subpoena duces tecum for the records.

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Thanks will let her know, also as far as if she is denied and she files for and appeal will emplyment commission help her in obtaining subpoena for her employee file or is this something she must do on her own?
Thanks

As a product of the Methodist Children's Home in Little Rock It would be interesting to know what she was fired for. The one I was housed at was run by a methodist charity and VERY strict on whom they hired and the policies for which a person could be fired.

Regardless, have mom file for UC then go from there.

That being the case, the company is correct that they have no legal obligation to allow her to see her personnel file, barring a subpoena. They may if they choose to, but they are not under any legal obligation to do so and without a subpoena cannot be forced to.

The employer does not have to give her any written documentation. They are not a court of law and do not have to prove her "guilt" beyond a reasonable doubt. She may legally be fired on suspicion of misconduct, even if they are mistaken in their suspicions. They have no legal obligation to provide her with ANY severance pay; a week is more than they are required to do by law.

Under Texas law, if she is fired (or even if she is forced to resign) she may, may request, in writing, a reason, also in writing, as to why she was fired. However, I want to emphasize that the law says they MAY give it to her, not that they MUST. Also, the law specifically states that if they give it to her, she may NOT use it in any civil or criminal action against them.

Unless she has a valid reason to believe that they are making up their accusations specifically BECAUSE she filed a workers comp claim, that is irrelevant. However, their firing her does not relieve them of their responsibilities to her with regards to any medical bills related to the workers comp claim.

An application for UI will not provide her with, or give her any assistance in obtaining, a subpoena for her records. She will need to speak to a local attorney about that in a separate action. She cannot (repeat, CANNOT) obtain a subpoena on her own.

Actually sweetie the TWC (Texas Workforce Commission) does have the power to issue subpoenas. But I still luvs ya

Texas Workforce Commission
Main Office
4241 Woodcock
San Antonio, TX 78228
(210) 932-1644

San Antonio Bar Association
Lawyer Referral Line
(210) 227-1853

Employee Rights Project
Bexar County Legal Aid
123 Ascot
San Antonio, TX 78228
(210) 922-5893

BelizeBreeze said:

Actually sweetie the TWC (Texas Workforce Commission) does have the power to issue subpoenas. But I still luvs ya

Texas Workforce Commission
Main Office
4241 Woodcock
San Antonio, TX 78228
(210) 932-1644

San Antonio Bar Association
Lawyer Referral Line
(210) 227-1853

Employee Rights Project
Bexar County Legal Aid
123 Ascot
San Antonio, TX 78228
(210) 922-5893

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Hey thanks for the numbers these will definately help

cbg said:

That being the case, the company is correct that they have no legal obligation to allow her to see her personnel file, barring a subpoena. They may if they choose to, but they are not under any legal obligation to do so and without a subpoena cannot be forced to.

The employer does not have to give her any written documentation. They are not a court of law and do not have to prove her "guilt" beyond a reasonable doubt. She may legally be fired on suspicion of misconduct, even if they are mistaken in their suspicions. They have no legal obligation to provide her with ANY severance pay; a week is more than they are required to do by law.

Under Texas law, if she is fired (or even if she is forced to resign) she may, may request, in writing, a reason, also in writing, as to why she was fired. However, I want to emphasize that the law says they MAY give it to her, not that they MUST. Also, the law specifically states that if they give it to her, she may NOT use it in any civil or criminal action against them.

Unless she has a valid reason to believe that they are making up their accusations specifically BECAUSE she filed a workers comp claim, that is irrelevant. However, their firing her does not relieve them of their responsibilities to her with regards to any medical bills related to the workers comp claim.

An application for UI will not provide her with, or give her any assistance in obtaining, a subpoena for her records. She will need to speak to a local attorney about that in a separate action. She cannot (repeat, CANNOT) obtain a subpoena on her own.

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She does feel that their reason for this is unfair, and that she does not deserve to loose her job over it. I suppose there are things in life are that way sometimes, however my view of this is that she has been treated unfairly and without dignity and she absolutely does not deserve this. She has been in touch with on a regular basis almost in tears as to the way a particular person was treating her. I had initially told her to get in touch with the national labor relations board to see what her rights as an employee were regarding the situation, which she was going to do on her own time when she was off, however she was given this alternative before she had a chance to even check them out.
As far as WC I do not believe that it is at all related but she does have some problems from this and my concern was that especially since she will not have medical insurance due to being fired that her bills associated with the accident would be taken care of. I know that she can apply for cobra but she is not sure if she can pay for this.

Unfair is not illegal. An employee can be fired for unfair reasons and it can still be legal.

The strong likelihood is that this is a legal termination. However, just for the record, she said she'd be upset because of the way someone was treating her. Who is this person and in what way was she being treated?

cbg said:

Unfair is not illegal. An employee can be fired for unfair reasons and it can still be legal.

The strong likelihood is that this is a legal termination. However, just for the record, she said she'd be upset because of the way someone was treating her. Who is this person and in what way was she being treated?

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It was someone over her who was writing her up for misc items which seemed extremely petty, also they were items that others do not get written up for. She had called me several times over the last couple of weeks almost in tears. He does not apparently want to listen to her part of the story and speaks down to her in a hatefull manner.
My mother was employed in a children's home, where she actually now floats from unit to unit to cover for whomever is out. They have rules as any home should that are to be followed, however she seems to be penalized for doing this. One example was a child (I believe is about age 15) was doing a presentation and acted extremely inapropriately. To which my mother advised him of what was not appropriate and she knew he could do a better job. He got angry and as my Mom walked away he cussed her out F--- You was what he said, my Mom actually did not hear him because she will tune them out if they are trying to get into a power stuggle. Another boy who heard this asked her if she intended on writing the first boy up for the incident, he told her what the first boy had said. My Mother then went and checked with the other adult who was there when this occured and asked her if she had heard what he said. The other adult confirmed this. My mother took points off of his level sheet (this is what they are told to do as a consequence)which bought him down to a 70 - She got written up for bringing him down to a 70, and was told that because she did not hear him say this that she could not write him up. I could see this if she were only taking the word of the child but another adult that they hired and trusted to work with the children should absolutely be trusted - I would hope.
The next day this boy was down to a level 50 by the other home parents yet they did not get counseled on this issue. This is just one of many small and what seems very petty situations that she was written up for. My Mom would call me and felt like this fellow had it in for her and would be extremely upset after speaking to him.
To recap she was told that she was fired for not getting along with other employees. She was told this previously,approx a year ago that most of the employees felt uncomfortable working with her, so when this occured she was wondering who this was and if this was so she wanted to make it right So she checked with many of the home parents she worked with and honestly wanted to know exactly how she could better herself or what it was she was doing to where people felt that they were not getting along. Many of the home parents got a little angry that they were even implicated with this sitution and said they only had good things to say about her, many of them wrote letters to her and signed them to say what a hard worker she was and how they welcomed working with her.
Anyway not to bore you with the long drawn out info, there are other petty things - I could probably write a book!

If your mother had to guess (and I don't want to put words in anyone's mouth) why does she think this person "has it in for her"?