fired

[klc9100]

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

georgia

i had this job for 3 yrs. never any problems. about a year ago, i hurt my back on the job. my employer sent me to the doctor. they opened a workers comp claim. i missed about a week of work. i got to feeling better, went back to work and everything has been fine since. last week i hurt my back at work again. worse this time. they sent me to the doctor and opened another workers comp claim. the next day, my supervisor called and fired me. they say they fired me for excessive absences. i have missed some time lately (but nothing excessive). it hasn't been calling in sick or anything. it would be like to take one of the kids to a doc appt, or the orthodontist, etc. 99% of the time i missed, i requested off weeks, if not months in advance, in writing as per company policy, and was granted the time off. again, this would be a few hrs. here and there, not even full days most of the time.

i think it's pretty obvious i was fired because they think my back problems will be ongoing. i get that, but i don't think they handled it in a legal manner.

i have been to physical therapy twice and am awaiting a mri. i have been cleared to return to work with limitations. i can't stand or sit for extended periods of time and i can't lift anything over 10 lbs.

my delima is, i don't have a job to return to now. also, how do i go about finding a new job when i have to tell my potential employeer that my back is all jacked-up, i can't sit, i can't stand and i can't pick anything up. i'm sure that will really make me an appealing candidate. . .

i think i was wrongfully terminated &/or i'm being descriminated against due to my back problems that occured while i was at work.

what can i do???

in the mean time, i have filed for unemployeement. my termination papers state excessive absences as the reason. i have requested copies of my signed & approved time off requests, as well as copies of my time sheets for verification purposes twice. both times my former employeer refused to give them to me.

don't i have a legal right to a copy of my perfonel file?

my problem with the excessive absence non-sense is this: 1) i don't miss any more time than anyone else there does (honestly, probably less). 2) i asked for the time off in advance, so at any time, they could have said, "no". 3) if i had missed so much time that they didn't want me anymore, why hadn't they said something about it, or already fired me? why/how do you fire someone the day after opening a workers comp claim on them???

 

[cbg]

What you consider excessive, and what your employer considers excessive, may not necessarily be the same. Can you answer a few questions for me?

1.) How many employees does your employer have within 75 miles of your location?

2.) Do you work full time or part time?

3a.) EXACTLY how much time have you taken off for all purposes combined in, say, the last twelve months?
3b) Of the answer to 3a, how much of it was for your back injury?

(Example; I have taken off a total of 3 weeks, of which one week was for the back injury)


Actually, in your state, no, you do not have a right to see your personnel file. There is no Federal law requiring it; some states do and some states don't. Your state does not.

 

[klc9100]

What you consider excessive, and what your employer considers excessive, may not necessarily be the same. Can you answer a few questions for me?

1.) How many employees does your employer have within 75 miles of your location?

probably close to 50

2.) Do you work full time or part time?

full time

3a.) EXACTLY how much time have you taken off for all purposes combined in, say, the last twelve months?

10 days, maybe 2 weeks max. like i said, it would mainly be a few hrs. here, a few hrs. there. also, i always made sure my work was done before i left, so nobody had to cover for me. or, i would come in after whatever i had to do and get everything handled.

3b) Of the answer to 3a, how much of it was for your back injury?

before being fired, i hadn't missed any time due to my back. i hurt it and missed a week a little over a year ago, since then, my back has been fine. i hurt it last wednesday around 2pm, they sent me to the doctor, they called me the next day, thursday at about 11am and was fired.

(Example; I have taken off a total of 3 weeks, of which one week was for the back injury)

i have taken off a total of 1 to 2 weeks in the last 12 months and ZERO of it was due to my back

Actually, in your state, no, you do not have a right to see your personnel file. There is no Federal law requiring it; some states do and some states don't. Your state does not.

so how can i prove to the labor department, or a lawyer, that my time off was requested and approved? how could it be considered excessive when they knew about it ahead of time and said, "OK"? i have never asked for any time off and it not been approved. not a single time. it's because they knew i would still get my work done, and i always have.

also, if i can't have copies of my time sheets, what is to keep them from saying i was absent from work on a day i may have missed an hour, but still got all my work done?

 

[klc9100]

What you consider excessive, and what your employer considers excessive, may not necessarily be the same.

i realize that, but shouldn't what's considered excessive for one person be considered excessive for everyone in the company? i was not exagerating when i said that i have probably missed less time than anyone else there. these people are calling out sick, for days at a time, everytime you turn around. i have never called out sick. i've had to leave early to pick a sick child up from school, take then to doc appts, etc. EVERYONE has to do these things at times. i don't get sick, and when i do, i go to work anyway.

i have friends that are currently employeed there and friends that have been previously employeed there that will testify on my behalf. they all have always said i'm the hardest worker there and they can't believe i put forth so much effort for so little money and even less appreciation.

 

[commentator]

First of all, file for your uneployment, which you say you have done. They will start with "what was the reason you were terminated on the last day you worked and then you were told you were terminated?" Was it for a medical reason? Do you have a doctor's statment verifying that ? Then they'll make an decision. and the decision will be an intial decision, and either you or your employer can appeal if the other party wins.

But in the meantime, you're also talking to a good labor attorney, about the worker's comp and absenteeism issues. Had you actually be terminated from the worker's comp claim, in other words, had you returned to work with MMI? THen, what esxactly happened on the day of your temination from the company. It will all get hashed out. It does sound as though you may have a pretty good case that you have been fired while on worker's comp.

In any case, unemployment will be separate from those issues. Work on getting this claim approved first. You've filed, I gather you are waiting on a decision. Let us know what that decision is.

 

[klc9100]

First of all, file for your uneployment, which you say you have done. They will start with "what was the reason you were terminated on the last day you worked and then you were told you were terminated?" Was it for a medical reason? Do you have a doctor's statment verifying that ? Then they'll make an decision. and the decision will be an intial decision, and either you or your employer can appeal if the other party wins.

yes. i filed. they asked me why i was terminated and i told them i was told it was for excessive absences. i am waiting on a decision.

But in the meantime, you're also talking to a good labor attorney, about the worker's comp and absenteeism issues. Had you actually be terminated from the worker's comp claim, in other words, had you returned to work with MMI?

what is MMI?

It does sound as though you may have a pretty good case that you have been fired while on worker's comp.

are you not supposed to be able to be fired while on workers comp?

 

[commentator]

Okay, you have filed for your unemployment insurance. You have filed, and they are doing the investigation for the intial decision. Did you mention to them the worker's comp issues? I'm sure they asked you if you were fully released to return to work yet by your physician.

Now, soon, you will be receiving a decision in the mail telling you whether or not you were approved to draw benefits in this initial decision. If you were approved, you will begin getting unemployment checks, but your employer can protest and appeal the decision. If your claim is denied, you can appeal. YOu will continue to make weekly certifications while this appeal is going on. You will go in and explain in a hearing where both you and the appeals judge or referee and the former employer are all there. They''ll ask about that attenance policy,they'll ask if you had had warnings and write ups, they'll ask about your last absence, was it with a doctor's excuse.

You can say what as many of these absences you recall were for as you like. It is not required that your former employer give you copies of your file, or tell YOU when you were absent. However, they should be able to present these absences to the unempoyment office so that they can prove they had a good absenteeism reason to terminate you. Don't forget to bring in that you had not been told your absences were excessive or that you were in danger of losing your job at any time until this issue came up about your back. That the policies do not seem to have been fairly administered, that that you did not know at your last absence that it might lead to your termination. This would seem to help your chances of being approved for unemployment.

But, unemployment insurance and worker's comp issues are totally separated issues. SO don't think filing for one and being approved for one will make any difference about the other circumstance.

Worker's comp, you really need to be talking to someone like a labor lawyer. MMI means maximum medical improvement. After you have reached maximum medical improvement, you sign off on it and return to work. If you have permanent limitation, you must be paid to make up for them. It is not legal for the company to fire you while you are within an open worker's comp claim. But this is what you need an attorney to help you with.

 

[cbg]

This is really, really important.

You said "close to 50 employees". Do you think it is over 50, or under 50? It makes a difference. Really.

 

[klc9100]

This is really, really important.

You said "close to 50 employees". Do you think it is over 50, or under 50? It makes a difference. Really.

there are 3 locations. each one has 15 to 20 employees. that would be between 45 & 60 total. i estimated around 50. what it the sugnificance of that?

i heard if a company has 15 or more employees, they were required to follow federal labor law guidelines. is that true?

 

[pattytx]

The number of employees has nothing to do with wage and hour laws. It does have everything to do, however, with whether or not the employer is subject to the Family Medical and Leave Act.

Are these 3 locations all within a 75-mile radius? How far are they apart from each other? If the employer has 49 employees, you're SOL. If they have at least 50 AND those 50 employees work within a 75-mile radius of YOUR location, then we may have an FMLA issue. So, it's critical to your question.

 

[aldaron]

I think the important issue here is a back injured twice and what type of work is being done. I think the employer is trying to protect themselves from a massive workers comp lawsuit.

 

[davidmcbeth3]

here is how the litigation trial would go (after you are done with any administrative processes): 1st) your side makes a case supporting your claim (the company would then likely motion for a summary judgment in which case the judge will rule that you provided enough evidence showing support for your claim) 2nd) company will make a case for firing you for other reasons not related to a workmans comp issue. In some states, they must spell out their reasons in their answer/ special or affirmative defenses in their reply to your answer (and they will throw everything they can up on the wall). So, your first thing is to request your personnel file & then see if you need to follow up a claim with an administrative agency of your state. If your excessive absences are related to your workmans comp case then they may find other reasons for the termination so you should explore all possible reasons during discovery. A jury trial is your best option , judges tend to give alot of leeway to businesses - they are elected officials. The company can fire you when a pending workmans comp claim is alive .. just for other reasons. The 1-2 weeks off not related to your back (WC) issue may be a suit killer for you though to be honest - it does not matter if anyone had to pick up any slack -- you could have done even more work during those 2 weeks.

 

[klc9100]

The number of employees has nothing to do with wage and hour laws. It does have everything to do, however, with whether or not the employer is subject to the Family Medical and Leave Act.

Are these 3 locations all within a 75-mile radius? How far are they apart from each other? If the employer has 49 employees, you're SOL. If they have at least 50 AND those 50 employees work within a 75-mile radius of YOUR location, then we may have an FMLA issue. So, it's critical to your question.

yes, the 3 locations are within a 75 mile radius. i just can't be sure about the exact number of employees. how could i find that out?

 

[klc9100]

I think the important issue here is a back injured twice and what type of work is being done. I think the employer is trying to protect themselves from a massive workers comp lawsuit.

i think they fired me to avoid further workers comp issues as well. i get that. i can even understand why they would feel that way, but that doesn't make it legal. i thought if you were injured at work, your employer/insurance company was "on the hook" for medical expenses and a % of your salary until you were well or a settlement was reached.

isn't that how the law works?

i'm not "one of those people" that wants to draw a check and sit on my butt all day watching TV. i would much rather be at work. it drives me nuts sitting around. but the simple fact is, i can't work right now. i can barely even walk. worse than that, when i am well, i don't have a job to go back to because of it.

i work at a daycare center. i work mostly in the kitchen. i also fill in in the classrooms when needed. i do the bulletin boards, assist the teachers, do the laundry. i basically do whatever i'm needed. that's one of the reasons this so upsetting to me. i am the definition of "team player". these people are trying to screw me though.

i have to lift commercial sized cases & cans of food. i also have to lift children. these lifting acts are what injured my back both times.

 

[klc9100]

here is how the litigation trial would go (after you are done with any administrative processes): 1st) your side makes a case supporting your claim (the company would then likely motion for a summary judgment in which case the judge will rule that you provided enough evidence showing support for your claim) 2nd) company will make a case for firing you for other reasons not related to a workmans comp issue.

if they were going to fire me for any other reason besides my back being hurt, why would they wait until the day after i hurt my back to do it. nobody has ever as much as mentioned anything about my absences before i was supposedly fired for it. that makes no sense, does it?

In some states, they must spell out their reasons in their answer/ special or affirmative defenses in their reply to your answer (and they will throw everything they can up on the wall). So, your first thing is to request your personnel file & then see if you need to follow up a claim with an administrative agency of your state.

i was told earlier in this thread that i have no "right" to a copy of my personel file. how can i get it? i really need it. that would show that all the time i had off was approved way ahead of time.

If your excessive absences are related to your workmans comp case then they may find other reasons for the termination so you should explore all possible reasons during discovery.

my absences weren't related to my back. i hurt it on wednesday and was fired on thursday (less than 24hrs later).

A jury trial is your best option , judges tend to give alot of leeway to businesses - they are elected officials. The company can fire you when a pending workmans comp claim is alive .. just for other reasons. The 1-2 weeks off not related to your back (WC) issue may be a suit killer for you though to be honest - it does not matter if anyone had to pick up any slack -- you could have done even more work during those 2 weeks.

i don't understand why. 1) i find it hard to believe that many people (particularly mothers) don't miss a cumulative week of work per year. that is far from excessive and again, it was requested ahead of time and approved. 2) there are very few people there that haven't missed MORE time than i have. how can it be excessive for me and not for EVERYONE??? that's not fair nor would i think it's legal.

it has to be obvious to everyone that i was fired because i hurt my back. they had to call it something else, so they threw the "excessive absences" out there.