Dismissed without written notice

[marleedav]

My daughter left work early one day due to a Migraine. Because the boss was in a meeting, she sent him an email telling him she had to leave early. The next day, he called her in and scolded her. Then, a few days later he told her, after thinking it over, he decided to let her go. He asked her to get her things and leave at once. She left (in tears). Next, she started getting calls from former co-workers saying they heard she'd quit! That's what he told everyone. She has no written letter of termination to prove her dismisal (in order to collect unemployment). She called unemployment and they tried to contact her boss. Everytime they call, he's "unavailable" to talk. Meanwhile, it's her word against his....he says she quit, she says she was fired. What do you make of this? By the way, within two days, he hired a male to replace her. She (and others at work) say he's a "woman hater".

 

[Beth3]

Only a few States require that the employer provide a reason in writing of why an employee was discharged. If you want to post back and say what State your daughter is in, some one may be able to advise you whether that is the case.

On the UC issue, if the boss is never available to answer questions from the UC people, they'll make their decision based upon whatever your daughter tells them.

It's not at all uncommon for the UC adjudicator to be hearing two entirely different stories - one from the claimant and one from the employer - and they have to decide who is most credible. In the absence of the employer providing any documentation that your daughter resigned (such as a resignation letter), the odds tend to be in her favor. If the employer DOES respond and gives the "she quit" version and she is deemed ineligible, she should definitely file for a hearing. Many initial determinations are overturned at hearing.

On the discrimination angle, it's really not possible to say whether she has a case or not from what you've shared. A rumor that the boss is a "woman hater" and that she was replaced by a male is not enough to go on. 50% of the population is male.

 

[cbg]

West Virginia does not require a written termination letter.

Did your daughter say why she had to leave early in the e-mail?

 

[marleedav]

Thank you so much for writing back to me. My daughter doesn't live in WV. She lives in Maryland. And, yes, she did leave a message on the email stating that she had a Migraine and had to leave (her medication was at home).

 

[marleedav]

By the way, cbg, it's nice to hear from you again. I filed my husband's appeal with Prudential and will let you know what happened. Also, am working on the papers for the Equal Employment complaint. You've were a great help.

 

[cbg]

Hi, marleedav, I thought that was you. Yes, definitely let me know how things go with Pru and the EEOC.

Maryland does not require written notice of termination either. Sorry. I think there are only 12 that do and even in those twelve there are some exceptions - only certain industries, only employers with xx employees, only if the employee was with the company for xx weeks or more and in one case, only if the employee requests it, in writing, within 5 days of the termination. There are reasons for this - it's not entirely arbitrary.

Okay, this is very important. Prior to this incident, had your daughter ever made him aware that she was prone to migraines AND that she might occasionally need an accomodation for them? Or was this instance the first time she'd ever mentioned it to him?

 

[marleedav]

Hi Cbg,

Glad you remembered me. And, yes, I'll definately let you know what happens with Pru and EEOC. I wrote Pru a four page letter! Doubt we'll win, but it was worth a shot. To sum it up, I said, "How could Prudential tell us my husband was able to perform his duties, when they never asked what his duties were? His duties required being on the road, and the doctor told him not to drive. So, if he couldn't drive, (then I said, "see enclosed doctor's note), how in the world could he perform his duties.?" We shall see, cbg!

Anyway, back to my daughter, that's a shame that Maryland doesn't require written notice of termination. I worked for the public school system in Maryland and remember the employer was required to give a letter of warning before termination. The same applied for a union job my husband once had. I suppose that's a different situation because in both cases unions were involved. So, I suppose it wasn't the "law of the land" but "the law of the union".

No, my daughter's boss didn't know she had problems with Migraines. They rarely occured and I guess she didn't think it was worth mentioning (because she probably didn't consider it like a disability). But, she did have sick leave, and in her email told him she had to take a half day sick. Other than trying to collect unemployment, it doesn't appear there's much she can do (according to what you've said). But, I have one more thing to mention. She asked him for her Personnel Files and he refused to give them to her. Isn't he supposed to?

 

[cbg]

Given the circumstances you've described, while I'm not going to say it's fair I can't find anything illegal that you're daughter's employer has done. I had a long shot possiblity in mind, but if she never mentioned her migraines to her employer before it's not going to fly.

You're right that the written notice of termination requirement was union rather than law.

Regarding personnel files, that's another thing that's state specific. In Maryland, if she was a public employee she is entitled to see, but not copy, her personnel file. If she was a private employee, it's entirely up to the company whether they want to let her see them, or copy them.

 

[marleedav]

That's too bad about the long shot not working out. Oh well, my daughter's young and will find another job. (Unlike my poor husband who's nearly 62. Nobody wants to hire someone his age. Not unless he wants to be a greeter at Walmart.) I'm not finished with his former employer yet! It's going to take a lot of time to get my info together for the EEOC (I have to get statements from my husband's former "men", etc.). But, I can't let this go without a fight. Not after 23 years of employment. I'll keep you posted. And, thanks for the advice regarding my daughter. It's best she moves on rather than spend a lot of energy on a case she doesn't have. She can use that energy to find another job!

Take care,
Marlee

 

[marleedav]

cbg, there's more to the story

Well, cbg, I jumped the gun and asked for advice before I knew the whole story about my daughter. I only talked to her briefly about her job dismissal last week. That's because she told me she'd rather come over this weekend with the entire story. She had good news (along with the bad news of losing her job) and wanted to tell me in person. The good news is that she left work that day not only from a Migraine, but from severe nausea. Why is that good news? Because she went to the doctor that same day and found out she was pregnant!! We've waited sooo long for this! Now....here's her complaint...when she returned to work the next day and told the boss she was pregnant, that's when he told her "This isn't working out". However, two days earlier he told her what a great job she was doing. I'm going to ask her to write down all the details for me. But, one of the things he said when he fired her was that she didn't measure up to his standards of loyalty. She never understood what he meant. I've gotta get more facts together for you. But, this doesn't sound good at all. In addition, she believes he's on medication (or should be). He comes to work "high" one day and "low" the next. She's even seen him break down and cry on the job. Not that this has anything to do with her accusations of discrimination, but he definately doesn't seem very rational.

 

[cbg]

Congratulations on the baby - that's great news.

As I'm sure you know, it is illegal for him to fire your daughter BECAUSE she is pregnant. She can, if she wants, try to file a claim with the EEOC or the Maryland discimination commission. Whether she will succeed or not is dependent upon how good a case he can put together to claim that she was fired not because she was pregnant, but for leaving the office without permission. Only your daughter can decide whether or not it's worth it to her to try.

Almost forgot to add, her assessment of her boss's rationality really doesn't have much to do with this. It's the company's issue to deal with, not hers. There's not really anything illegal in anything you've described with relation to it. She could possibly report what she's observed to senior management or HR, but after that it's their problem to deal with.

 

[marleedav]

Thanks for the congrats! We're very excited. As far as the boss firing her because she was pregnant, that's going to be his word against hers. But, I think it's worth pursuing. There are some interesting facts involved. Such as when he fired her and said it wasn't working out, only two days before he not only told her she was doing a great job, but was talking about sending her to a seminiar (and a very expensive one in which he was going to pay for). When she told him she was pregnant, and he fired her, she asked him if it had anything to do with her pregnancy. He told her no and that he was thinking of letting her go six months ago. If that's true, why did he give her a raise and a bonus three months ago? Also, he sent her to another one of those expensive seminars back in Dec. Then, only two days before he got the news of her pregnancy, he told her she was doing great and wanted to send her to another seminar. This doesn't add up.
When she cried and asked for a specific reason of being let go, he said he had a "bad feeling" about her. Well, he didn't have a bad feeling two days ago. And, BTW, she said he wasn't mad about her leaving early. I found out later, that he called her into his office the next day to see what the status was on a specific project she was working on. Because she left early, I guess he wondered how behind she was. She told him she was almost caught up. But, then after that, she told him what the doctor said. That's when he got upset and said things weren't working out. In addition, when he fired her, he told her he was going to give her a severence (sp?) pay and would direct deposit it in her account on 4/12. He hasn't done that and won't answer her calls or emails.
Another thing...she designed web pages for his company, and brought in some big clients, such as Pepsi Cola (the guy was a friend of hers). Now, she thinks she'll start her own business. She knows a lot of his clients would want to use her. But she remembers him making her sign some kind of paper when he hired her. She thinks it had something to do about agreeing not to steal his clients. But, when he fired her, she asked him for a copy of the paper she signed. He refused to give it to her. So, legally, she's unsure if she's becomes a competitor, whether or not he can sue her. Even if she doesn't take his clients, he may accuse her of using skills which she learned at the seminars that he paid for. Which, of course, she would. She doesn't know what the paper said that she signed and is lost as to what to do.

 

[cbg]

I agree that she should investigate the possibility of a pregnancy discrimination claim. Just be aware that it's not going to be a slam dunk. She DID leave without permission on the day she had the migraine, albeit for a good reason, and that right there might completely wipe out the good review two days before. It's all going to depend, assuming that the EEOC thinks it's worth pursuing at all, how believable he comes across to the investigator.

Severance pay is not mandated by law. She should check with the Maryland Wage and Hour division to see if he can be held to the statement that he was going to give her four weeks severance, but the likelihood is that he cannot.

The type of agreement you're referring to is a non-compete agreement. They are VERY state specific and dependent entirely on the wording. They are legal, but how enforceable they are depends on how broad they are and how the specific state has interpreted them. In my state, a six month agreeement is enforceable, a one-year one might be, a two year one would not be. Another state might see things differently. I really don't know how Maryland interprets them. I should, I had employees in Maryland as recently as 2000, but the question never came up. She should talk to a lawyer about this. It's possible that a letter from a lawyer might get him to send her a copy; it's also possible, depending on Maryland state law, that his refusal to allow her to see a copy will invalidate the agreement.

 

[marleedav]

Thanks, cbg! You've been so helpful. I will pass all of this info to my daughter and hope for the best. I'll get back to you later on when I find out about our other cases. By the way, you're from Maryland! What a small world. I've only been in WV since Nov. But Maryland is my homeland. It's nice to talk to a local!

 

[cbg]

No, I'm in Massachusetts; I just had employees in Maryland. I've been working in a multi-state environment for the last five years or so. I was raised in PA, though, so I know the general area.

Good luck and keep us posted.