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    I will try to make this brief as possible.

    Last spring, a manager at a different location went on sick leave. Before he went on leave, he was on a final counseling for performance. When he returned to work several months later, he was re-assigned to my location because his position was filled. According to our policy, he still had a job though. He now reported to me. The day he returned, my boss basically said that I needed to get rid of him due to past performance, which I then agreed.

    He really started performing very well, and I was surprised and pleased, as he always performed well up until a few months before he went on medical leave. Well, no matter what I told my boss about his performance, my boss still wanted me to get rid of him. I explained that all his performance issues were no longer an issue, and that I thought his performance suffered simply because he was sick. None of this mattered and the pressure to get rid of him increased. My boss started force feeding me reasons to fire him that were not valid, and my boss never spoke to this individual or witnessed his performance at all. I saw many e-mails addressed to me and HR, and from HR, stating that he was milking the company, and his medical leave was not valid. It was clear that this person was considered fired no matter what.

    I finally sent an e-mail to HR and my boss stating that I was not going to lie about Randy's performance to get rid of him, and that everything my boss said about him was unfounded, and unwitnessed by him.

    My boss immediately talked to me about it and said that he would lay off of firing him. But I know they are VERY unhappy with me.

    Now, after years of high reviews and performance, I am not happy working with this company, and I am just waiting for some kind of retaliation to occur.

    I am also sure that this person is still in trouble, and they are just waiting for a chance. Basically, my career with this company is over, sadly.

    I have documentation proving everything that was said.

    My question is this. Should I ask for a severance agreement and just chalk this up to me doing the right thing? Do I have a leg to stand on here?

    Sorry for this going so long. This is very emotional for me. Thanks

  • #2
    Honestly, I don't know why the employer would even consider a severance package. They want you to do something that you don't agree with, but is nevertheless, legal. You aren't comfortable doing it and don't see the need and I can understand that, but is this really the hill you want to die on?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


    • #3

      I'm not sure I understand what your are saying:

      1) firing someone for being sick isn't illegal?
      2) asking me to fire someone for reasons that are not valid to cover up the fact that they want him gone because they don't think he was really sick is legal?
      3) after everything that has occurred, will it not be impossible to look as any kind of accountability placed on me, valid or not, as retaliation?


      • #4
        sorry, more more comment

        I may have not made this clear:

        In my letter to HR, I stated that I would not be involved to keep myself out of harms way. Not that I didn't agree with them, just that I felt they were doing something illega


        • #5
          If the individual's absence was covered by the Family and Medical Leave Act (FMLA), then he was entitled to 12 weeks of unpaid leave with job protection. He was covered by FMLA if he had a serious medical condition and:

          1) The company employs 50 or more employees within 75 miles of the job site.
          2) He'd worked for the company more than 1 year.
          3) He'd worked more than 1250 hours in the past year.
          I am not able to respond to private messages. Thanks!


          • #6

            All the above is true.


            • #7
              But, if he was out for more than 12 weeks, (and your post said he was out for several months) his job is no longer protected, regardless of whether he was out for illness or not.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


              • #8

                Does the company's own 6 month policy change anything? Their policy basically doubles the FMLA. Obviously the company felt some pressure or they wouldn't have let him return to work after 5 months, they would have just fired him.

                The big question is, am I protected against retaliation for refusing to fire him for medical leave reasons because I felt it was unlawful, when it is their own policy that protected his job?

                Thanks again


                • #9
                  The problem is that company policy is not law. Unless the policy is written in a way as to provide a binding contract, or the policy mirrors (not exceeds) a law, the company may violate their own policies if they choose to.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                  • #10

                    Okay. What they are doing is not unlawful, however, could there be some civil issues here?

                    Again, I think the company takes their policy seriously, or they would've fired him before. Instead, they tried to use me as a henchman. It sems they didn't have to do that at all. As soon as I told them I thought it was unlawful, they started patronizing me.


                    • #11
                      Okay, let me put this as plainly as I can.

                      1.) Ohio is an at-will state; he can be fired for any reason that does not violate the law. So can you; just as either of you can quit for any reason at any time.

                      2.) On Week 13, Day 1 of his leave, his legal job protection ended. From that point on, the employer had no legal obligation to return him to his same job, or to work at all.

                      3.) The fact that they did return him to work does not change this.

                      4.) The ONLY way this is going to be illegal is if there is verifiable proof that he was fired BECAUSE he took FMLA leave - and since they returned him to work after giving him two months more leave than they are required to by law, it's going to be very difficult to prove that.

                      5.) Since it does not appear to be illegal for them to fire him, you have no legal protection if you refuse to do so.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                      • #12
                        You're going to have to be more specific about what you need to know before anyone can help you.

                        It would be preferable if you started your own thread, next time.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                        • #13
                          Constructive termination is not legal. I admire your courage for doing the right thing.


                          • #14
                            Company policies, once enacted, have the same force as a civil law. While companies are free to violate them they also open themselves up to liability. They know the odds are on their side that the grieved employee won't take action. Talk to a labor law attorney if you want the real scoop.


                            • #15
                              Actually, company policies are not at all the same as laws. Courts are only going to enforce bonafide contracts and laws. They will not challenge the business judgement or application of company policies.
                              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.