Gross Misconduct and Texting

[Lazyrider]

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

I was terminated from my job of 3 years for texting my boss (while both of us were off duty) several times. My boss preferred texting as a form of communication with his supervisors (which I was), and it was something that we did regularly. My texts used foul language (not out of the ordinary for either of us) and were angry in nature because of a scheduling issue (my boss covered my shift and never told me, I showed up to work the shift and was informed by a co-worker that I was 'covered', that the boss said I 'wouldnt be in', and therefore I was not going to get paid. I never said I wouldn't be in! So I left work (never even signed in) and began texting him repeatedly.)

I have no disciplinary record to speak of (not one write up, written warning, anything) had a perfect attendance record, was a supervisor, and had a stellar work record. My employer has fired me for Gross Misconduct, which by general definition implies that I was fired for doing something 'criminal' in the workplace. I have worked in this same industry now for 10 years, and feel the Gross Misconduct charge can and will affect my reputation and future employment in this industry. Can I sue them for defamation?

I realize that this is 'at-will' employment, and that I can be fired for 'anything' at 'anytime'. But Gross Misconduct seems a bit harsh, especially given that what I did wasnt remotely criminal, and my actions were off the clock to begin with. My boss and I were friends. I can certainly understand if I had 'said' these things to my boss at work, on the clock, and within earshot of co-workers (that would imply that what I was saying/doing was meant to demean him or disrespect him blatantly, which would be wrong). But sending text messages is private for the most part, the texts are typically meant to be read only by the person who posseses the phone. Any advice?What is the name of your state (only U.S. law)?

 

[cbg]

I don't know where you're getting your definitions from, but gross misconduct does not, to the public at large and certainly not to HR at large, imply criminal activity, not by a long shot. Yes, it may seem a bit excessive, but without valid and supportable proof that first, you suffered actual damages as a direct result of his calling it gross misconduct and second, that gross misconduct implies criminality, a defamation claim is not going to fly.

You don't get to sue for something that hasn't happened yet and may never happen.

 

[Lazyrider]

I don't know where you're getting your definitions from, but gross misconduct does not, to the public at large and certainly not to HR at large, imply criminal activity, not by a long shot. Yes, it may seem a bit excessive, but without valid and supportable proof that first, you suffered actual damages as a direct result of his calling it gross misconduct and second, that gross misconduct implies criminality, a defamation claim is not going to fly.

You don't get to sue for something that hasn't happened yet and may never happen.

Thanks for the response! I actually had to look up the term 'Gross Misconduct' when I was fired, because I didn't know what it meant, and it sounded rather serious considering how harmless my actions were. Every definition I came across said things like "behavior so severe that it is cause for immediate dismissal". And all of the examples I found in every definition of the term included things like:

Vandalism (which is criminal)
Fighting/Assault (again, criminal)
Stealing (hmmm....criminal)
Sexual Harassment (criminal)
Showing up to work drunk or on drugs (maybe not criminal, but definately a severely bad behavior)

By my companys own handbook these behaviors are grounds for immediate dismissal, are considered Gross Misconduct, and obviously imply criminality. Not only was I not even at work when the texts were sent, I'm pretty sure 'hurting the bosses feelings' isn't covered under gross misconduct by any definition.

So by your post, I am to wait and see if I am denied employment by another company specifically because of the Gross Misconduct reason for termination by this employer.

My point is that I already know I can be fired for 'anything', but this already looks bad to my coworkers (at the company that fired me) and other companies (I work in the airline industry - other airline employees at companies that could potentially hire me at this airport are aware of what has happened. Word is already spreading to their hiring managers, and its making me look bad!)

 

[cbg]

"Making you look bad" does not give you legal recourse unless there is a definite perception of criminality. Which there isn't.

Other than that, as I said, you can't sue for something that hasn't happened yet and may never happen.

 

[Lazyrider]

http://www.infinisource.net/Infinisource/Benefit_Resources/Published-Articles/Published-Articles-0907.pdf

(note the 5 point test on the bottom left of page 2) Gross Misconduct sure seems to imply criminal behavior to me.

 

[cbg]

Have it your way, then.

The fact is, there IS no definitive definition for gross misconduct. But you want it to say criminal, fine, it's criminal.

You are free to pay for a lawyer and sue anyone you can talk him into suing. But don't come crying to me when you lose the suit and have to pay your employer's legal fees as well as your own.

 

[Zigner]

Let's say that you were to tell a customer to bugger-off and that he smells like yack and then told him that his wife was ugly and he was emitting toxic odors...that's not criminal. But it could surely be considered gross misconduct.

Notice, I said "could" because, as previously mentioned, it is a case-by-case basis.

 

[Lazyrider]

Have it your way, then.

The fact is, there IS no definitive definition for gross misconduct. But you want it to say criminal, fine, it's criminal.

You are free to pay for a lawyer and sue anyone you can talk him into suing. But don't come crying to me when you lose the suit and have to pay your employer's legal fees as well as your own.

WOW. You're a nasty one, aren't you? I said Gross Misconduct IMPLIES criminal. Again, I referred to the Employee Handbook, and realize that it can encompass other actions/activities, etc. that are NOOOOOT criminal. HOWEVER, the main examples listed of Gross Misconduct were criminal activities.

Now, if other employee handbooks are similar, then who's to say that a prospective employer, well aware of their own company rules/employee handbook, wouldn't hear that I was fired for Gross Misconduct and potentially think that I had done something criminal in the workplace? It's just a thought, its something that I'm worried about, and I think its a legitimate concern to have, especially given my positive work record, position with the company, and time in the industry.

I understand having to take a 'wait and see' approach in order to determine how this will affect future employment, that certainly makes sense, and I am happy to have had that made clear for me. I was just wondering if there was any other information or help I could get, since I realize this isn't a black and white issue.

Honestly, I really just want my stupid job back, not money. I love to work, I still have 2 jobs (had 3 until I was fired from this one). I talked to a corporate rep., and they were quite adamant in their decision. It seems very surprising to me that they would be so willing to potentially tarnish my reputation and make it difficult for me to find other work, or to continue in an industry that I work well in, and truly love being a part of.....and all over something so trivial.

And why would I come 'crying to you' LOL??? Sounds like you think yourself rather important......sheesh lighten up, chief.

 

[cbg]

No, actually, I'm not nasty at all. I just get frustrated when I try to explain things to people and they keep coming back and telling me I'm wrong. If you know so much better than I do, why are you here in the first place?

I do not agree with you that gross misconduct implies any kind of criminal activity. This is based on close to 30 years of working in HR. You can believe what you want. I'm tired of fighting it.

 

[Lazyrider]

No, actually, I'm not nasty at all. I just get frustrated when I try to explain things to people and they keep coming back and telling me I'm wrong. If you know so much better than I do, why are you here in the first place?

I do not agree with you that gross misconduct implies any kind of criminal activity. This is based on close to 30 years of working in HR. You can believe what you want. I'm tired of fighting it.

You are having trouble reading here, I think.

When a particular company's employee handbook lists criminal activities as the majority of its examples of Gross Misconduct, then it should not be unreasonable for another employer to think that if one was fired for Gross Misconduct by this company, there may be a high probability that they have done something criminal in order to warrant the termination. Does that make any sense now?

While I appreciate the tiny bit of help you have given me so far, you have since then only served to confuse me a bit more, then get nasty because you "do not agree with me that gross misconduct implies any kind of criminal activity". I keep finding articles, other company employee handbooks, court cases, etc. etc. online and elsewhere that contradict this "hardcore" stance you have taken, and yet I don't ever recall actually saying NO, YOU ARE WRONG, HERE IS THE RIGHT ANSWER (as you claim).

What I'm hoping to find by posting here is simple: that because I have found these things, AND because I'm taking into consideration your posts, is this something that I should pursue, since its possible my firing could be considered Wrongful Termination in the end? Could Defamation be proven? More importantly, through all of this, what is the probability that I could just have my job back and stop this nonsense already?

 

[Zigner]

You are having trouble reading here, I think.

When a particular company's employee handbook lists criminal activities as the majority of its examples of Gross Misconduct, then it should not be unreasonable for another employer to think that if one was fired for Gross Misconduct by this company, there may be a high probability that they have done something criminal in order to warrant the termination. Does that make any sense now?

While I appreciate the tiny bit of help you have given me so far, you have since then only served to confuse me a bit more, then get nasty because you "do not agree with me that gross misconduct implies any kind of criminal activity". I keep finding articles, other company employee handbooks, court cases, etc. etc. online and elsewhere that contradict this "hardcore" stance you have taken, and yet I don't ever recall actually saying NO, YOU ARE WRONG, HERE IS THE RIGHT ANSWER (as you claim).

What I'm hoping to find by posting here is simple: that because I have found these things, AND because I'm taking into consideration your posts, is this something that I should pursue, since its possible my firing could be considered Wrongful Termination in the end? Could Defamation be proven? More importantly, through all of this, what is the probability that I could just have my job back and stop this nonsense already?

Had you not taken such a prissy little attitude from the START here, maybe I would be less challenging and more thankful to you.

So, now you think you have a wrongful termination cause of action? Oh brother.

 

[Lazyrider]

So, now you think you have a wrongful termination cause of action? Oh brother.

I guess I would only have a wrongful termination cause of action if it could be proven that what I did didn't constitute gross misconduct, but something other than the reason on paper for my termination. Again, I don't know....which is why I'm asking. If you'll notice, I'm actually asking questions, not outwardly saying that I think I have a wrongful termination cause of action, as you rather stupidly claimed.

Does anyone pay attention on this board? Do you even read whats posted?



Now then.....did you have anything relevant to add to my inquiry, or are you just here to post useless comments and get mouthy with strangers for no reason?

 

[mlane58]

What I'm hoping to find by posting here is simple: that because I have found these things, AND because I'm taking into consideration your posts, is this something that I should pursue, since its possible my firing could be considered Wrongful Termination in the end? Could Defamation be proven? More importantly, through all of this, what is the probability that I could just have my job back and stop this nonsense already?

Sure reads like you think you have a wrongful termination---which you don't! Unless that termination was based on a protected characteristic, then you have nothing-end of story!

 

[Lazyrider]

The bottom line chief is that is doesn't matter one bit what you find online, in the library, or in a rat hole about "Gross Misconduct" you have no case for anything. The employer is entitled to their opinion and with an attitude like yours I would have fired you for just being an jerk.
Why don't you spell it out?

Actually, "chief", it appears there IS NO bottom line. Certainly my employer is entitled to their "opinion".....but if there "opinion/decision" isn't clearly defined by their own handbook, or if their "opinion/decision" implies something that is not FACT but rather FALSE, then their "opinion" can potentially get them into trouble for ruining a decent employees reputation.

AND, it actually DOES matter what I have found by reseaching thus far - every little bit will hopefully help me understand this whole situation a bit more, and eventually guide me as far as what I should do next. In addition, hearing how nasty most of the responses I've gotten are (assumably from H.R people, and "employers") also helps me get an idea of what I could be up against should I pursue this. Most valuable, I assure you.

Ha! I'm a jerk now? Whats wrong, you don't like the way I ask a question, so that frustrates you to the point of name calling? Are you serious?? CLASSSSY I thought I was being clear, concise, thorough, and rather pleasant thus far.

And of course you could fire me for "being a jerk". THAT just goes to show you how little appreciation employers have these days for skilled, educated, hard working employees with exemplary work records.

Pretty sad actually.

 

[commentator]

commentator

What it comes down to is that if you want your job back, and you had such a good relationship with your employer that you felt comfortable texting him and calling him names or using profanity, you might get him to reinstate you. You can certainly ask him what sort of reference you can expect from him.

However, you can't sue him and make him give you your job back. Whether or not you were fired for "gross misconduct" which is a term, nothing more. Not something that is going to have a lot of meaning to the next employer you try to get a job with. You're just going to have to talk around your reason for termination when applying for your next jobs. We don't know what he's going to tell the next employer. As I said, you could ask him.

I would always suggest that people file for unemployment benefits when fired. You may lose your appeal, but then, he may not chose to fight it, or he may, and you might win anyhow. The fact that you have had no previous disciplinary issues will be in your favor. They will have to make a decision based on your and your employer's testimony whether this was "gross misconduct" according to your employment situation, and they will take the workplace handbook into consideration, plus your previous relationship with the employer, other employees acceptible behavior (like if everybody cursed on the job at this worksite)