Hello biggerbule-ga,
I’m sorry about the tough situation you face. Getting laid off is
difficult to accept even when you see it coming, even when the reasons
for it are completely impersonal, even when hundreds of others around
you are getting laid off too. It’s even tougher when you feel that you
were treated unfairly or that you were singled out for arbitrary
reasons. With your financial difficulties and handling the
naturalization bureaucracy it sounds like you definitely had your
hands full. I will help you think through your options about getting
your old job back.
Please understand that I am not a lawyer and cannot give you legal
advice. I urge you to talk to an attorney and get professional help
for your complete peace of mind. My experience includes working in
labor relations and human resources so I have a good grasp of the
issues involved in your situation. I hope to give you an overview of
the questions you may want to take to a lawyer.
================
SUMMARY OF FACTS
================
First, let me summarize my understanding of the facts as you’ve set
them out.
1) You were involuntarily terminated from your employment on 12/31/00.
2) Your employer called this termination a layoff and considered it a
part of downsizing your department and the company.
3) You were the only one laid off from a department of 10 people. (You
don’t say how many people got laid off from the whole company.)
4) The company immediately offered to rehire you as an independent
contractor.
5) The new job’s workload is about 75% of your prior job and pays 25%
of your prior pay and offers no benefits.
6) You accepted the contractor job and have been working at it ever
since.
7) Some time after you were laid off you corresponded with the HR
department about documentation for your naturalization interview.
8) In the course of the correspondence with HR someone sent you some
messages that they might not have meant to share with you.
9) One of these messages was from the Director of Administration and
included a remark about you that said “basically he was terminated
because he was the least talented and least hard-working in the whole
department.”
10) The company has an annual performance review process.
11) Your reviews while you were an employee did not reflect the
dissatisfaction shown by the Director of Administration’s remark.
12) You believe there were other criteria that could have been
included in your annual review.
13) You were working with an employment contract that was an “at will”
contract. (It is not clear if this is a formal contract you signed or
simply company policy.)
14) Your employment contract required two weeks notice for
termination.
15) You want to know whether you can establish grounds for “wrongful
termination.”
16) You want to know if there is an applicable statute of limitations.
17) You want to know whether a claim of discrimination might be
applicable.
18) You want to know in what jurisdiction you should pursue your
claim.
====================
WRONGFUL TERMINATION
====================
You are asking whether you might have a claim of discrimination or
wrongful termination against your employer. I will discuss both these
issues and show how they’re related.
“Wrongful Termination” is a term that applies when an employee was
fired illegally because the termination was against a Federal or state
law, regulation or constitutional provision. Some terminations may be
unfair, mean, and unethical but might not meet the standard for being
considered wrongful or illegal.
You mentioned that your contract was a “so called open contract.” Such
contracts are called “employment at will” contracts. When you work in
an “employment at will” state it means that the employer can fire you
at any time for any reason that is not illegal. Reciprocally, you can
also quit anytime for any reason. The full extent of the applicability
of the “at will” principle is governed by state laws. An employment
contract stating other terms for termination will supercede the “at
will” provisions of your state.
There are some limitations on “at will” terminations and the violation
of these limitations is what gives grounds for a “wrongful
termination” claim.
Contract Violations
Most of the time employment contracts are applicable in a unionized
company. Some companies also have employees sign a written contract
setting out the conditions of employment which may spell out the
grounds and procedures for termination. In recent years companies have
avoided such contracts and have usually stuck with a strong
“employment at will” provision. There has been a history of litigation
on claims of implied employment contracts based on company policies or
verbal agreements. If someone believes that an employment contract was
violated they have a claim for “breach of contract” not “wrongful
termination.” Your discussion of the company evaluation process leads
me to think you might want to consider a “breach of contract” claim. I
will discuss this below.
Discrimination Statutes
There are a variety of discrimination statutes that protect employees
against discrimination in adverse actions, including termination,
because of age, race or national origin, gender, disability or medical
condition, and other protected categories. You mentioned that you were
applying for naturalization but you did not say that you thought you
were discriminated against because of your national origin. The
information you provided does not indicate that you intend to pursue a
“wrongful termination” claim based on discrimination.
Public Policy and Retaliation Statutes
There are a number of statutes that protect employees against
retaliation by their employers because the employee chose to perform a
legal duty or exercised a legal right. These protections include:
employees who are whistleblowers who reported illegal activity of the
employer to a government agency, filed a discrimination complaint or
filed for workers' compensation, took time to fulfill jury duty,
claimed overtime pay or limited hours of work, or refused to do
something illegal on the employer’s behalf. There are many employee
protection statutes that fall under the public policy umbrella. The
information you gave in your summary does not indicate that you think
your employer was retaliating against you for any reason or violated
any public policy provisions.
==========================
TERMINATION FOR GOOD CAUSE
==========================
If no contractual agreement supercedes the “at will” provisions of
employment in your state, the next step is to consider the laws and
regulations that govern what constitutes “good cause” (aka “just
cause”) for employee discharge in your location. Through the years
there has been an erosion of the absolute “employment at will”
principle promulgated by "Wood’s Rule" which allowed firing an
employee for "good cause, for no cause, or even for cause morally
wrong."
“Good cause” is the all-embracing term for terminating employees for
legal reasons. Implementing good cause provisions requires that
decisions affecting employees be based on the legitimate
business-related interests of the employer. How this principle is
applied varies greatly from state to state. Most states have laws that
cover terminating employees whose behavior is unacceptable or whose
performance does not meet requirements. Most states also have
provisions for allowing the employer to discharge employees for
business reasons, including: lack of work, relocation of the place of
work, closing down the business, reorganizing operations, or financial
considerations. Most layoffs are justified as caused by business
reasons and fall under the “terminations for good cause” requirements.
You did not raise any issues about contesting your employer’s right to
lay you off for business reasons. The only remaining consideration is
whether your employer’s evaluation of you as “the least talented and
least hard-working in the department” violates dismissal for “good
cause” laws, regulations and policies in your state.
The first consideration is whether your employment contract addresses
the subject of employee performance and provides for progressive
discipline for bad performance. If your company has a policy for
progressive discipline and they did not follow that policy, you may
have cause for a “breach of contract” claim if it’s in your employee
contract or a “wrongful discharge” claim if the company did not follow
its formal policies.
If your company does not have a formal performance and progressive
discipline policy, the case law in your state will govern. In most
states it is extremely unlikely that you would have a case. For
example, in a California case (Jensen v. Hewlett Packard Co. (1993) 14
Cal.App.4th 958, 970.) the employer won in a suit about "False
Evaluation." They said:
"Employers should neither be required to justify performance
evaluations by reference to objectively provable facts, nor subjected
to fear of liability for good faith, but mistaken, judgments about the
value of an individual employee to the business enterprise."
In effect, the judgment said that even if the manager was wrong in his
opinion of the employee’s work, the employee did not have grounds for
a suit. I don’t know what state you live in, but it is likely that
similar interpretations of the law apply in your state as well. So,
your questions about the possibility of using the Director of
Administration’s remark about your performance in the document you
inadvertently received is not likely to be enough grounds to pursue a
claim for “wrongful termination.” Thus, the question of statute of
limitation becomes moot.
As I said before, I’m not a lawyer and I advise you to find a good
attorney who specializes in employment law and get an informed opinion
about your situation.
Below, I’ve included an assortment of links to help you investigate
further. Please ask for clarification on any of this if you need
further information. I wish you success in your current job and best
wishes for finding a more rewarding one.
czh
==========================
WRONGFUL TERMINATION LINKS
==========================
http://www.fairmeasures.com/wrongful.html
Wrongful Termination FAQ
http://jobsearchtech.about.com/library/weekly/aa102300.htm
Wrongful Termination
What Constitutes Wrongful Termination?
http://jobsearchtech.about.com/library/weekly/aa092402-3.htm
Employment at Will
U.S. Federal Laws Limiting Employment at Will
Age Discrimination in Employment Act of 1967
Americans with Disabilities Act of 1990
Bankruptcy Act of 1978
Civil Rights Act of 1964
Civil Rights Act of 1991
Civil Service Reform Act of 1978
Consumer Credit Protection Act of 1968
Employee Polygraph Protection Act of 1988
Employee Retirement Income Security Act of 1974
Fair Credit Reporting Act of 1999
Fair Labor Standards Act of 1938
Family and Medical Leave Act of 1993
Immigration Reform and Control Act of 1986
Judiciary and Judicial Procedure Act of 1948
Labor Management Relations Act of 1947
Mine Safety and Health Act of 1977
Railroad Safety Act of 1970
Rehabilitation Act of 1973
Vietnam Era Veterans' Readjustment Assistance Act of 1974
Whistle Blower Protection
Whistleblower Protection Act of 1989
Worker Adjustment and Retraining Notification Act of 1988
http://www.leefeldmanlaw.com/wrongfultermination.html
Wrongful Termination
http://laborlawoffice.com/WrongTerm.shtml
Wrongful Termination —Frequently Asked Questions
http://www.imakenews.com/techyvent/e_article000064674.cfm
Lawsuits from Layoffs
Guidelines for Staying Out of Court and Maintaining Morale; RIFs Don't
Have to Lead to Rifts
A. Make Sure There Is A Valid Reason for the RIF
B. Consider Alternatives to a RIF
C. Develop The Criteria For Termination Decisions
D. Review All Employment Policies and Procedures Which May Affect the
Decison
E. Consider What Benefits To Provide To Employees Who Are RIF’ed
F. Informing the Employee
G. Alternate Dispute Resolution
http://www.look4law.com/topics/WrongfulTermination.asp
What are public policy exceptions?
Often, courts have held that for certain public policy reasons,
employees should not lose their jobs under the employment-at-will
doctrine.
http://www.frascona.com/resource/jhl494wt.htm
There are currently two exceptions to the common law at-will rule
based upon the legal principles of "public policy" and "implied
contract."
http://www.wetfeet.com/employer/articles/article.asp?aid=389
Best Practices for Employee Termination
http://www.fairmeasures.com/newsletter/archive/spring93.html#EWF
Employer Wins "False Evaluation" Case
"Employers should neither be required to justify performance
evaluations by reference to objectively provable facts, nor subjected
to fear of liability for good faith, but mistaken, judgments about the
value of an individual employee to the business enterprise." In other
words, even if the manager was wrong, he couldn't be sued.
Jensen v. Hewlett Packard Co. (1993) 14 Cal.App.4th 958, 970.
http://www.boeschlaw.com/justcause.html
Why (and how) Indiana Should Adopt Good Cause Termination to Replace
Employment-At-Will
The first few pages of this paper give you an excellent overview of
the issues.
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SEARCH STRATEGY
===============
wrongful termination
wrongful termination layoff
layoffs legal requirements
wrongful termination public policy |
