Much further than wrongful termination?

[Kpg]

I'm sorry, but saying that "maybe" they will be able to place him elsewhere is not a guarantee; nor does it change anything with regards to the legalities. It is still not a wrongful termination under the law and he is still going to have to go through his union for any relief.

He needs to apply for unemployment sooner rather than later.

I know it wasn’t a guarantee, but it sounded hopeful that they were going to put him somewhere else so we did not want to file for unemployment before speaking to him. The call came in late on Friday afternoon stating that he could send his resume over.

We’ve never dealt with anything like this before so another question I have is will him filing unemployment hurt his chance of obtaining a new job from this company if they decide to rehire him after they get his resume? (Which I know they don’t have to hire him but they said to send it so we will)

 

[cbg]

There is no valid reason to believe that they will refuse to re-hire him (assuming that is their plan) because he applied for unemployment. In fact, the opposite is true. It costs them money for him to be on unemployment because they let him go; better that he be working than collecting on their dime.

Unemployment is not retroactive and every week he does not file is another week he will not get paid for. Both MA and NH have waiting weeks, which means that even after he files, he is not going to get paid for the first week. It is not a good idea to hold off applying because maybe they might hire him back.

 

[Kpg]

There is no valid reason to believe that they will refuse to re-hire him (assuming that is their plan) because he applied for unemployment. In fact, the opposite is true. It costs them money for him to be on unemployment because they let him go; better that he be working than collecting on their dime.

Unemployment is not retroactive and every week he does not file is another week he will not get paid for. Both MA and NH have waiting weeks, which means that even after he files, he is not going to get paid for the first week. It is not a good idea to hold off applying because maybe they might hire him back.

He did file unemployment last night, as of the 7th he was still covered by STD.

He wasn’t holding off for a maybe, it literally sounded like they were simply going to transfer him to another shop, I realize they said the word maybe but he also got into “it will he same pay, same job”.

 

[commentator]

Still better to get the claim filed, though he will not be able to draw until he has been off STD and released to do something (even if light duty, in the case of an on the job injury) and starts making weekly certifications for benefits.

But unemployment benefits are something the company cannot judge you for, or reward you for not filing, even as they cannot say whether or not you qualify (or no one would ever qualify!)

As it has been pointed out, in most cases, they'd usually rather have you back at work than drawing unemployment insurance which is going to be charged against their employer tax account.

But do not think that you're going to "impress" them with his sincerity or do them a favor by not applying for unemployment, or by not getting it if he is eligible and that will make them more inclined to look at him favorably or to call him back to work.

Employers know quite a bit about unemployment and they know that any employee who is out of work through no fault of their own, though they are able, (by the required defintions) available and in this case want the job back are fully entitled to unemployment benefits.

It is an insurance program they are required by federal law to pay into that costs them more for putting an employee in this situation, and not something they have the liberty of granting to you themselves or saying you should or should not do.

The filing of a claim may keep them from dragging their heels too much before they do put him back to work. I hope they will. Good luck to you.

 

[Kpg]

Sorry one more question..

I also real quick want to point out that I don’t think he’s “owed” anything. Maybe it was naive but we simply went on the word of everyone he spoke to during the time he was recovery from surgery and that was he would have a job to go back to.

However.. I’m the type of person who once I understand things I can accept them!

Yesterday he put in another call to the union, he called them the first time when he got the month old termination letter last week.. again no one called him back. Why would they ignore him? I mean even if they don’t want to or can’t help him what’s the big deal of just letting him know that?

We are trying to figure out where we can find the unions collective bargaining agreement.

We were told by the attorney we spoke to, to file a grievance as a formality but we can’t do that if no one will talk to him! I feel two ways about this, I know you can’t force someone to talk to you but really they can’t spare 10 minutes and return a call?

 

[cbg]

I can think of several different reasons. I have no way of knowing which is correct.

1.) The specific person he needs to talk to is not available and will not be available for some time.

2.) They aren't willing to assist him and don't want to say so out loud

3.) It's the end of the year and everyone is busy; they'll get to him when they get to him

4.) Someone is doing research and they don't have the customer service skills to recognize that they should tell him that.

5.) Something else altogether

 

[Kpg]

He got a voicemail from someone from the union today, actually it came last night but the call never came up and went right to voicemail, he must have been in a bad area.

Union has no clue what’s going on and hadn’t been notified of his termination. The person who called didn’t leave a call back number but did say they would try him back sometime today.

This just keeps getting stranger. I think it’s safe to assume the ball has been dropped here many times?

 

[cbg]

As I've said several times, there's no question this has been handled badly. It's just that it hasn't been handled illegally.

 

[justalayman]

Your husband should have a copy of the collective bargaining agreement. If he doesn’t he can get one from the union.

And if there is a union hall where the union administration works available to him, have him make a personal visit. It gets really difficult to ignore somebody that is standing at their reception desk.

 

[Kpg]

Your husband should have a copy of the collective bargaining agreement. If he doesn’t he can get one from the union.

And if there is a union hall where the union administration works available to him, have him make a personal visit. It gets really difficult to ignore somebody that is standing at their reception desk.

Looks like that is what it is going to come to, seems like that will be the fastest way to get a copy of the CBA also.

For people that know this stuff this must be a silly question but why would a union/company offer a benefit package that allows STD that covers you for 6-12 months but you can’t take that amount of time off if that’s what you need? If they know they aren’t going to let you come back to work after then why wouldn’t they want to be responsible for your insurance etc while you are out and then let you go?

Other things have happened over the past few days. The only people who aren’t changing their stories is my husband.

If there is something in the CBA that proves that he shouldn’t have been let go does that then make it something illegal?

 

[cbg]

This is a very misunderstood concept. STD and LTD are not leave; they are how you get paid while you are on leave. The length of time the disability carrier will pay benefits does not have any relationship to how long an employer can/will be willing to hold the job. 12 weeks is protected; after that it's up to the employer.

I have employees who have been out on LTD benefits for ten years or more. But you don't really think we can hold their jobs that long, do you? There comes a time when we have to bring in someone who will be able to come to work and get the job done. How long is reasonable can depend on the job and the employer. A large employer may be able to absorb an absence longer than a small one can, but eventually any employer and any job has to have someone filling it.

It's scary, I know hon. And I'm not saying I think everything that has been done was done right. I think it's been handled very badly. I wish I could find an illegality for you, but I can't. It's not been handled well, by any means, but short term disability benefits are just that - short term. 26 weeks is standard; I've never, ever, in almost 40 years of working in employer benefits, seen one that exceeded 52 weeks and 52 weeks is rare.

Does the employer offer long term disability benefits?

 

[cbg]

If there is something in the CBA that proves that he shouldn’t have been let go does that then make it something illegal?

Didn't see this initially. No, it might be a contract breach, but that's still not a wrongful termination. It might get him his job back; it might get him back pay, but it isn't going to get him a lawsuit. Sorry.

 

[Kpg]

Thank you so much for the information!

We don’t want a lawsuit at all, the only thing he wants is his job back. The union president is still gathering information.

If he can’t have his job back we will move on. He’s of course already looking into new companies and sending his resume off.

Trust me, I know I sound like someone that’s been rejected from a date or something and that I’m getting desperate but the only reason we are following this through completely is because we don’t think it is fair.

Of course I don’t think you can be out of work for ages and ages and expect to have a job to come back to either but he was put in an impossible situation “you can’t come back until you have and recover from knee surgery”.

He was told over and over again that being out for 6 months would not be an issue. We weren’t even financially prepared for him to be out but once he was told he couldn’t go back there was no other choice, especially when the union steward told him to just get it done instead of filing a grievance. Oh how I wish he didn’t listen and went over him.

While I’m the first to admit that I don’t know a ton about STD, how the union works etc, I’m so curious to know why at this moment our health insurance is still active?

Why didn’t they just let him go when he got injured? His recovery was supposed to be 6 months but he did everything he could not to take that long and was ready to go back in under 6 months from the surgery.

I don’t understand why restricted duty was only not allowed once he was hurt. When he tried to go back to work in September a very reasonable accommodation would have been letting him work in the control room since it’s a “desk job” and someone needs to be there 24/7.

He’d never had any problems at work, worked hard no complaints against him. His job is listed on a job site right now.

I don’t know about the insurance offering LTD, but he’s all recovered and I’m sure if nothing comes of this he will find a new job quickly. I just feel it needs to be explained to him WHY this happened when he was assured over and over he would be fine coming back in December and that’s exactly what his plan was.

Like I said, even if we had a case for wrongful termination we probably wouldn’t pursue it. There are certainly loose ends that need to be tied up, I’m assuming he needs to receive something about withdrawing from the union.

 

[cbg]

I can't answer this for certain, but I do employee benefits for a living and I can make a pretty good guess.

Insurance plans run according to their plan document. Once something is established by the plan document, it is carved in STONE.

About 50% of the time, when an employee terminates (regardless of whether it's a voluntary or an involuntary termination) the insurance ends on the last day of employment. The other 50% of the time, the insurance continues for a short time after termination. Usually it's to the end of the month in which termination happens - once in a while it's something else.

I'm betting that this employer, or this union, or both, continues insurance until the end of the month in which the termination happens, or until another date that the contract states. It's actually fairly common for health insurance to extend beyond the last day of work.

 

[Kpg]

Just wanted to come back and give a quick update. After weeks of trying to contact the union FINALLY there has been some movement.

He was given his job back, he will be working the same job, same pay, same benefits but in a different facility (better hours and closer to home)

Turns out it is in his collective bargaining agreement that he was in fact entitled to 6 months of leave so he was terminated without just cause which was also not right. He had been cleared to go back to work 5 months after his surgery so he was early! So there should never have been an issue.

I don’t know how or why but we never did end up losing our health insurance, I was holding my breath because I was sure it would be gone by the first of the month..

He filed unemployment over a month ago and they are so backed up he hasn’t been denied or approved yet so needless to say we are very happy that he will be heading back next week!!