Unfairly Fired! Should I Sue?

[mitousmom]

Did you ask whoever terminated you why you weren't being granted the probationary period? Did you inform that person that you believe that you were being fired because your new boss didn't like you, not beause of your performance? If not, you should.

What has the company's practice been when firing employees for performance? Do you know of employees who were given the probationary period? If you do, you could ask your employer for that opportunity and if denied, why you aren't being given the same opportunity?

I think your best option is to try to resolve the matter internally. You haven't presented information that suggests a violation of any employment laws. Whether you have a contract or implied contract issue is unclear. However, you will have a better chance in that arena if the evidence shows that your employer'slpractice in handling performance based problems have followed the handbook.

 

[Beth3]

mom, she was fired because she was unable to work effectively with the new boss and take direction from him. I really can't imagine the employer reversing their decision.

 

[BoredAtty]

Given that few employment handbooks are found to be contracts and almost all contain disclaimers, I happen to think it is difficult for the employee to win such a case.

In your prior post you indicated that the difficulty in winning such a case was providing proof that the handbook "GUARANTEE that you cannot be fired until after a warning and a probationary period, in ALL circumstances." You then claimed that proving that a guarantee existed would be difficult because "such a contract would mean that someone who committed physical violence or who was caught redhanded stealing from the company would have to be given a warning and a chance to improve before they could be fired."

That is not correct. I don't believe you can point to New Jersey case law in which a judge held that a handbook is not a contract because he doesn't want to force the employer to apply the policies in the handbook to violent employees or those who steal.

The reason most handbooks are not contracts is because employers purposely design their handbooks to follow the rules set out by the courts. In other words, it's a substance problem. Proving the substance, however, is not extraordinarily difficult considering it's written down for all to examine. Contrast that with an age discrimination suit where proving the reason for the termination is often extraordinarily difficult precisely because nothing is in writing.

 

[mitousmom]

Beth3:

I wasn't able to determine what the employer identified as the performance problem.

Nonetheless, you are probably right in your assessment of the employer's response to an appeal. However, if the OP feels s/he has to do something, trying to work it out with the employer makes more sense that trying to file a lawsuit. Appealing to the employer only involves the OP's time and the cost of postage. Assuming the appeal is courteous and professional, it can't hurt and I've been surprised by how higher management has responded to such entreaties.

 

[unfairlyfired]

To answer some questions

On the first page of the guidelines it says "The guidelines contained herein are not binding, and are subject to change by Company Name at anytime without prior notice".

Yes I can name plenty of other employees were given the opportunity to improve before being fired.

The new boss won't talk to me personally. I just got a letter. So I can't ask other questions. I talked to somebody in HR but not the director who controls the entire site. Should call him and ask if I can get the probationary period like other employees?

 

[Beth3]

Beth3:

I wasn't able to determine what the employer identified as the performance problem.

Nonetheless, you are probably right in your assessment of the employer's response to an appeal. However, if the OP feels s/he has to do something, trying to work it out with the employer makes more sense that trying to file a lawsuit. Appealing to the employer only involves the OP's time and the cost of postage. Assuming the appeal is courteous and professional, it can't hurt and I've been surprised by how higher management has responded to such entreaties.

Understood but the OP's initial post said she was fired because her boss didn't like her and they had had some "disagreements." At least to me, the situation seems pretty obvious. The boss concluded she was a pain in the posterior and he let her go. Perfectly legal.

 

[cbg]

I was attempting to provide an explanation, with an easy to understand example, of why disciplinary policies are not generally carved in stone. I was not claiming that there was case law specific to my example.

I agree that the wording of the handbook is what determines if it's a contract. And it would appear that this handbook DOES have the kind of disclaimer that generally means it is not.

 

[BoredAtty]

And it would appear that this handbook DOES have the kind of disclaimer that generally means it is not.

We don't have enough information to form a conclusion as to the validity of the disclaimer.

According to the OP, the disclaimer is on the first page and states: "The guidelines contained herein are not binding, and are subject to change by Company Name at anytime without prior notice."

New Jersey Supreme Court in Nicosia v. Wakefern Food Corp., 136 N.J. 401, 643 A.2d 554 (N.J., 1994):

An effective disclaimer by the employer may overcome the implication that its employment manual constitutes an enforceable contract of employment. Woolley, supra, 99 N.J. at 309, 491 A.2d 1257.

Although Woolley does not require the use of specific language for an effective disclaimer, it does require that a disclaimer make clear "that the employer continues to have the absolute power to fire anyone with or without cause." 99 N.J. at 309, 491 A.2d 1257.

The Preston court stated that an effective disclaimer must expressly "advise its employees that they could be discharged at will." Id. at 87, 555 A.2d 12. In so doing, "the language in the disclaimer must indicate, in straightforward terms, that the employee is subject to discharge at will." Id. at 85, 555 A.2d 12. In so doing, "the language in the disclaimer must indicate, in straightforward terms, that the employee is subject to discharge at will." Id. at 85, 555 A.2d 12.

Woolley also held that the disclaimer must be in "a very prominent position." 99 N.J. at 309, 491 A.2d 1257. Disclaimers in employee manuals fail for lack of prominence when the text is not set off in such a way as to bring the disclaimer to the attention of the reader. Ibid.; McDonald, supra, 820 P.2d at 988 (finding disclaimer that appeared on first page of employee manual as part of lengthy text not conspicuous because it was "not set off in any way, was placed under a general subheading, was not capitalized, and contained the same type size as another provision on the same page").​

 

[cbg]

I think you're misinterpreting my intent here.

At no time did I make a blanket statement that the poster did or did not have any options. I said that (1.) The termination is not illegal under statute or case law; (2.) the handbook would have to be a contract in order for it be considered illegal; and (3.) IN MY OPINION he will have a difficult time showing the handbook to be a contract.

I did not at any time tell him not to try or that it would be impossible to win.

 

[BoredAtty]

IN MY OPINION he will have a difficult time showing the handbook to be a contract.

I understand that is your opinion. But considering the lack of known facts in this case, what I don't understand is why.

Earlier you stated:

Since such a contract would mean that someone who committed physical violence or who was caught redhanded stealing from the company would have to be given a warning and a chance to improve before they could be fired, I seriously doubt that you will be able to provide such proof

and

Given that few employment handbooks are found to be contracts and almost all contain disclaimers, I happen to think it is difficult for the employee to win such a case.

Those are not good reasons for your opinion. The first is an inaccurate reflection of the legally relevant issues, and the second is a broad over-generalization (i.e. it doesn't matter whether most handbooks have adequate disclaimers -- we're talking about this handbook and disclaimer).

I'm probably going to regret I asked, but why is it your opinion that the OP will have a difficult time showing that the handbook is a contract?

 

[cbg]

First and foremost, because it appears that the actual reason for her termination was not disciplinary at all so a disciplinary clause would not apply. She's claiming a contractual obligation to allow her to improve, but there's also no indication that improvement was necessary or had anything to do with the termination. By her own words, she was fired because her employer was annoyed with her, not because of her performance. So why would they be contractually required to allow her time to improve a performance that was not a problem?

Second, because by the poster's own definition, the clause in question was a guideline, not a hard and fast rule. Guidelines are rarely contractual.

 

[BoredAtty]

First and foremost, because it appears that the actual reason for her termination was not disciplinary at all so a disciplinary clause would not apply. She's claiming a contractual obligation to allow her to improve, but there's also no indication that improvement was necessary or had anything to do with the termination. By her own words, she was fired because her employer was annoyed with her, not because of her performance. So why would they be contractually required to allow her time to improve a performance that was not a problem?

Interesting argument, but it doesn't have anything to do with whether the handbook consitutes a contract.

Second, because by the poster's own definition, the clause in question was a guideline, not a hard and fast rule. Guidelines are rarely contractual.

???

Are you making this up as you go along? Don't you think that you'd first have to know exactly what the OP is calling a guideline? And even if it's what you assume it is, with what legal authority are you concluding that a "guideline" is not enforceable?

 

[mitousmom]

Yes I can name plenty of other employees were given the opportunity to improve before being fired.

The new boss won't talk to me personally. I just got a letter. So I can't ask other questions. I talked to somebody in HR but not the director who controls the entire site. Should call him and ask if I can get the probationary period like other employees?

You can call, but my preference would be to also send him a written request for the probationary period (PP) enclosing a copy of the handbook page containing the PP requirement.

You should also inform him that other employees have been granted the PP and identify some of those rather recently granted the PP.

If he doesn't know you personally, you should provide a brief work history, pointing out your favorable performance record prior to the arrival of the new boss, and noting that you were not informed of any performance problems before you were informed that you were being terminated.

You should indicate why you think the boss fired. You should provide information on the disagreements you had with the boss. Hopefully, your disagreements with the boss were work related, showed that you had the best interests of the company in mind, were valid and made professionally and you can say so in the letter.

Good luck!

 

[You Are Guilty]

In my experience, a "probationary period" is "probationary" because that is the time when the employer can fire you without cause (or company-granted due process). If they can't fire a probationer without cause, what's so probationary about it?

(I'm getting rather existential in my old age).

 

[BoredAtty]

In my experience, a "probationary period" is "probationary" because that is the time when the employer can fire you without cause (or company-granted due process). If they can't fire a probationer without cause, what's so probationary about it?

(I'm getting rather existential in my old age).

But in this case the OP was never in a probationary period, as he was fired before that point.

And, if a court does find that the employer is contractually obligated to give the employee a chance to improve during a probationary period, it will likely also find that the employer must do so in good faith. Firing an employee without cause in a period during which the employer is obligated to give him a chance to improve would render the obligation meaningless.