Wrongful termination? Colorado

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Latest post 04-30-2012 3:42 PM by Taxagent. 12 replies.
  • 04-30-2012 6:16 AM

    • KMCO
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    Question [=?] Wrongful termination? Colorado

    My fiancee was fired two days ago.  We live together and have 5 kids between the two of us. I had to go out of state to take care of my sister who has cancer, and I left him at home, along with the kids.  On occasion, his employer would require him to leave town for a week or more, with less than one day's notice.  He never knew when this was coming.  In fact, he had only been out of town once in the 6 months he was employed with them.  Unfortunately, they asked him to go out of town for a job the day after I left the state.  He explained the situation, stating he couldn't leave the kids alone, but that he was ready and willing to work on anything they had locally.  They let him work a couple of days in town.  There was miscommunication between the employers and someone put him back on the board as "available" to go out of town.  Later that week, they called again, asking him to go out of town.  He explained again that there was a family medical emergency that was being dealt with and the kids couldn't be left alone. Both times he spoke to his employer, they said "ok", never warned him his job was on the line, and never indicated there was any problem at all.  They let him work another day locally, then on Friday, had him come in early and fired him.  Their reasons for terminating him, put in writing, were that he was being let go because he couldn't work when he was called to. This is false.  He could, and did work.  He just couldn't leave the children alone to go out of town during this extenuating circumstance.

    Do we have a wrongful termination case here?

  • 04-30-2012 6:21 AM In reply to

    • DOCAR
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    Re: Wrongful termination? Colorado

    KMCO:

    Do we have a wrongful termination case here?

    No, wrongful temination legally refers to being fired for protected activities or characteristics.  you cannot be firect for example, for filing a complaint with the EEOC or OSHA.  You cannot be fired for your race, religion, national origin, sex (in some states sexual orientation, but not all), or age.

    It may not be fair, but his firing was not illegal.

  • 04-30-2012 6:37 AM In reply to

    • KMCO
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    Re: Wrongful termination? Colorado

    Thank you for your reply.  It seems like it should be illegal to fire someone, without warning them that it could be a consequence, for caring for their family.

  • 04-30-2012 6:40 AM In reply to

    • DOCAR
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    Re: Wrongful termination? Colorado

    When he turned it down the first time, did he ask if it was going to be a problem?  Sometimes you have to be proactive.

  • 04-30-2012 6:49 AM In reply to

    Re: Wrongful termination? Colorado

    KMCO:
    It seems like it should be illegal to fire someone, without warning them that it could be a consequence, for caring for their family.

    It is illegal if the care being given qualifies for FMLA protection, the employee is eligible for FMLA, and the employer large enough to have to comply with the law.  Child care does NOT qualify for FMLA.  Child care is also NEVER the employer's problem.  With my employees I always encourage them to have emergency child care in place should the need arise.  

    The second problem you have is that you are not married. His employer has no obligation to provide support because a fiancee has a family issue.  It is a shame that it came up when it did that they needed him to go out of town but the employer is correct:  he was not available to work where THEY needed him.  The employee does not get to tell the employer when they are available and where they will work.  They work when and where assigned or risk losing their job.  He needs to file for unemployment and look for a new job.  They haven't broken any laws based on what you posted.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 04-30-2012 6:51 AM In reply to

    • KMCO
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    Re: Wrongful termination? Colorado

    No, his boss just said "ok, I'll take you off the board and let you know if/when we have anything in town".  My fiancee did not get any sort of impression it would be a problem.  He was surprised to get the second call.  It seems he wouldn't have been fired if he hadn't turned it down the second time because they referenced his rejection of trips "twice",  but he never should have been put back on the board. 

  • 04-30-2012 6:57 AM In reply to

    • KMCO
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    Re: Wrongful termination? Colorado

    ClydesMom, he doesn't qualify for FMLA because he's been employeed with them for less than 12 months.  We've definitely learned a lesson, in that he cannot take jobs that require him to travel anymore.  Too bad we can't sue for heartlessness.

     

  • 04-30-2012 6:59 AM In reply to

    • KMCO
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    Re: Wrongful termination? Colorado

    I forgot to ask this question....  he was supposed to get a raise for every new skill he acquired/licensed/cert... for that was on their "list".  However, he never received a single raise.  Can we go after back pay?

  • 04-30-2012 7:08 AM In reply to

    • DOCAR
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    Re: Wrongful termination? Colorado

    Unless he had a written employment contract, I doubt he would be successful, but you can file with your state's department of labor.  It costs nothing and they do the work for you.

  • 04-30-2012 7:14 AM In reply to

    • KMCO
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    Re: Wrongful termination? Colorado

    Good advice, thank you.

  • 04-30-2012 8:39 AM In reply to

    • LG81
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    Re: Wrongful termination? Colorado

    KMCO:

    Do we have a wrongful termination case here?

    No.

    That you two are unmarried, have five kids between you, and that YOUR sister has cancer is not the employer's problem under the law.  (If it was HIS sister, then there would be a different treatment HAD HE been eligible for FMLA, but he wasn't having only been there six months.)

    KMCO:
    Their reasons for terminating him, put in writing, were that he was being let go because he couldn't work when he was called to

    He wasn't available to work where they asked him to work.  The employer also can fire him for any reason or no reason at all, as long as the employer does not fire him for a reason prohibited by law.  The reason for your lover's firing is not prohibited by law.

  • 04-30-2012 8:45 AM In reply to

    Re: Wrongful termination? Colorado

    KMCO:
    Too bad we can't sue for heartlessness.

    NOTHING in the law requires an employer to be warm and fuzzy.  What you both don't understand is that this is business.  The employer spends considerable time and money hiring and training personnel.  To have to let someone go for any reason is expensive.  It is not a decision most employers take lightly.  The reality is they still have a business to run despite Mary's child care problems, Bob having the flu, Ted wanting to go to his kid's soccer game, and Suzie/Fred/Bill being on vacation.  If employers tried to accommodate every personal issue AND run their business the business would fail.

    I have this same conversation with my employees frequently.  One says she can't work Thursdays because she wants to go to school.  Another wants to work specific days because she has child care issues.  We are a hospital.  If I did my staffing around their personal life I wouldn't have enough staff and I can't hire oodles of people so that personal lives come before business. 

    Again, I HIGHLY recommend that you have emergency child care in place so that this does not happen again.  With five kids odds are that you will encounter child care issues again.

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 04-30-2012 3:42 PM In reply to

    Re: Wrongful termination? Colorado

    KMCO:
    Do we have a wrongful termination case here?

    No. When the employer is not a government agency, then the employer may legally fire you for any reason (or no reason at all) except for a few reasons prohibited by law. The prohibited reasons include firing you because:
        •    of your race, religion, sex, national origin, age, disability, or genetic test information under federal law (some states/localities add a few more categories like sexual orientation);
        •    you make certain kinds of reports about the employer to the government (known as whistle-blower protection laws);
        •    you participate in union organizing activities;
        •    you use a right or benefit the law guarantees you (e.g. using leave under FMLA);
        •    you filed a bankruptcy petition;
        •    your pay was garnished by a single creditor or by the IRS; and
        •    you took time off work to attend jury duty (in most states).

    He wasn't eligible for FMLA in this circumstance, even if he had been there a year. Since he's not married to you at this time, the fact that you had to leave town to care for your sister doesn't really enter the picture here because neither your nor your sister are relatives of your fiancé. Thus, viewing it from your fiancé's circumstance, this falls into simply a child care issue, like any other single parent would have. Neither federal nor Colorado law offers an employee any protection from being fired because the employee's child care issues prevent him from doing the work the employer assigns him to do.

    From your perspective, it seems "heartless." But the employer has work it needs done, and counts on its employees to be available to do that work. When they aren't available because of personal issues at home, that's not really the employer's problem. It costs money for employers to cover employees who can't do the work the employer needs, and as ClydesMom pointed out, firms can't accommodate every employee's personal needs in scheduling work. It's up to the employee to have in place plans to deal with personal issues that may arise. When you have kids, you have to put in place fall back arrangements for care when they get sick, or need care if another caregiver (e.g. spouse, fiancé, etc.) goes out of town, or whatever to ensure stuff like this doesn't happen. While it would be nice from the employee's perspective to have an employer who will accomodate every unexpected personal issue that the employee has, that's just not the world in which in we live.

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