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Wrongful Termination
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Wrongful Termination
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
MD law allows an employer to terminate an employee at will - no reason needed. At issue is a 4-year sales woman who, after missing 4 weeks of work, allegedly due to some hospitalization, is now ready
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Forums » Topic Forums » Legal Forum » Wrongful Termination
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Wrongful Termination
posted at 2/16/2011 9:38 AM EST
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Posts: 7
First: 2/16/2011 Last: 3/8/2011 |
MD law allows an employer to terminate an employee at will - no reason needed. At issue is a 4-year sales woman who, after missing 4 weeks of work, allegedly due to some hospitalization, is now ready to return. To further complicate matters, she claims her 4 children were sick at the same time. She was told to bring in full medical documentation, as proof of her illness. She did not apply for FMLA. She failed to call in during 4 weeks of absence (she did text her manager once during that time). We would like to term her for job abandonment, but are concerned that she would site wrongful termination, given her medical issues. All responses are appreciated. Thank you.
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Wrongful Termination
posted at 2/16/2011 9:57 AM EST
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
A couple of questions please.
1. Even in states with employment at will there are exceptions. Have you read up on MD law/cases to know what these are? 2. Did you wait until she returned to terminate her or did you do it after a certain amount of days off? 3. Is there a published policy on Job Abandonment or are you doing it on the fly? 4. Have you terminated others in the past for this same reason and is this consistent with that? 5. Have you had others off for weeks and allowed them to return? No exceptions? 6. Had this person not been out was she seen as a satisfactory employee or is this just an easy way out? |
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Wrongful Termination
posted at 2/16/2011 10:59 AM EST
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Posts: 7
First: 2/16/2011 Last: 3/8/2011 |
1. Will review relevant MD cases.
2. EE has not returned to work; came in to see what med docs were needed. 3. Yes we have a job abandonment policy & we have termed EE's for this. It is rarely used and only in cases where an EE cannot be reached or has failed to call in after more than two weeks. 4. Not that I am aware of. 5. If so, not documented. 6. Foremost topic of discussion has been her failure to call in regularly, not her job performance. |
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Wrongful Termination
posted at 2/16/2011 2:52 PM EST
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
I'd modify your stance on "employment at will a bit". Employment at will generally allws the employer to terminate the reason for any reason or no reason so long as it's not an illegal reason.
While the employee did not apply for FMLA, did you as the employer provide her with an FMLA application? Was she made aware of her rights under FMLA? ADA? |
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Wrongful Termination
posted at 2/17/2011 2:07 AM EST
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Agree with Nork! I would be making sure that we as the employer had followed the FMLA/ADA notification policies. Because she DID notify you that she needed FMLA because she was out more than three consecutive days. It is the employer's responsibility at that point to provide the FMLA paperwork to the employee. If you did and she did not return it, that is one thing and she could have lost her right to count that time as FMLA if she didn't return it in a timely manner.
I am not so sure I would immediately terminate without getting all the facts in a row. |
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Wrongful Termination
posted at 2/17/2011 4:29 AM EST
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Posts: 7
First: 2/16/2011 Last: 3/8/2011 |
All comments have merit and are appreciated. The critical issue was lack of communication - on both sides. Had there been sufficient communication, we would, assuredly, have offered EE FMLA. EE also knows she has STD (has successfully filed for it for other issues) but did not do so this time. Once we receive EE's medical documentation, we will be in a better position to make a determination.
Thanks to all for your insight and experience. |
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Wrongful Termination
posted at 2/17/2011 4:42 AM EST
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Posts: 79
First: 12/20/2004 Last: 2/17/2011 |
You said she texted the manager once. What did she say in the text and what did the manager say? If she informed him she was going to be out for a medical reason that should have triggered the FMLA process. |
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Wrongful Termination
posted at 2/17/2011 6:55 AM EST
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
It would seem that her text to the manager is communication to the company regarding her inability to appear at work.
If you terminate it could appear that you did so because of her and her family's health issues and that might override the employee at will rules. What is the timing of the note to the manager relative to the start of the absences? How does this compare to your policy? |
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Wrongful Termination
posted at 2/17/2011 7:06 AM EST
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Now is also a good time to have an updated training with all front line managers who deal with absences to make sure they understand the importance of timeoff as it relates to FMLA.
"When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA.: from FMLA regulation Section 825.303 So it is up to your managers to understand and ask and pass the information on to HR to send out the proper paperwork. I've got mine trained to tell me whenever any employee goes out for time that is not vacation timeoff. |
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