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  • Suspension/Probation

    We are located in Massachusetts.

    One of the three owner's of the restaurant where my husband work's has been rude and demanding to all his employees over the last few months.

    My husband spoke to one of the other owners two weeks ago, about the situation, and asked him to talk to the other owner about the way he was speaking to him, etc...

    Last Thursday the first owner approached my husband and starting screaming at him, my husband starting yelling back, the second owner asked my husband to go home and calm down.

    He was than asked not to come back to work until Tuesday. Than he was called and asked to come in on MOnday to meet with all three owners. They had a discussion of the events, and told my husband they would h=get back to him, on wether he would still be employeed or not.

    He was then asked to come on tonite (tuesday), and the second owner sat in a car ina paking lot to talk, about my husband's job. He was told he could keep his job but would be on probation for siz month's.

    The terms of the probation are agreeable to my husband, however, it state's that if he beaks any of the terms, that he agrees to immediate termination and will not file a claim for unemployment insurance against them.

    We are very confused as to wether they can do this, or should he sign. If he doesn't sign, he is considered fired anyway.

    Any advise? I'm sorry that this is so long.

  • #2
    If an employer can show that an employee was terminated for deliberate misconduct or violation of a company rule, then the DET can decline to extend the employee any benefits. But that is a decision for the DET.

    I suppose the employer could request that the employee admit to sufficient facts that might lead the DET to deny a claim, but it seems kind of odd. If the employee could've been fired for the earlier transgressions, then those would be the reasons for termination. If the employee is fired later, then I don't think the agreement would be of much use in the employer's UI challenge. Rather, I think the DET would look to the second transgression. The DET might find the agreement pursuasive, but I very much doubt it would be an open and shut case. I've never seen that issue litigated.

    If you can afford it, it may be worthwhile to have an attorney look at the agreement.

    For further info, unemployment eligiblity is governed by MGL c.151A, sec. 25. And the DET website also serves as a good reference - http://www.detma.org/WSQuestions.htm.



    You can find
    This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

    This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

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    • #3
      Thank we did contact a lawyer, since they were pressuring him to sign, in order to return to work.

      The comapny has no written policy, and although most of the terms of the probation were ok, the was an item suach as "employee will not raise voice before, during, or after work". This statement was way to broad, and not specific enough.

      My husband told his emploers this, and although one of the three owners wanted to re-write the document, the other two did not.

      So needless to say, my husband is out of work, but has filed a UI claim. So we will just have to see where it goes from here, and look for another job.

      The only thing we are unsure about know is. Was he terminated last Thursay or Today? He was a salaried employee. Do they owe him the pay, or just let it go? He doesn't want to cause undue stress to the one owner that stuck up for him.

      Sharon

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      • #4
        Under MA law, an employee must be paid out all wages, in full on the day of termination, unless he quits, in which case he gets his final paycheck with the regular payroll.

        As to whether or not to fight, that's your's and his decision.

        Good luck,

        Phil
        This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

        This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

        Comment


        • #5
          Here is how the situation happened.

          On Thursday, the 1st owner walked in and starting yelling at my husband. My husband was asked by owner 2 to just go home.

          Later that night owner 2 calls, and says to let things blow over and not come back to work until the following Tuesday.

          My huband asks how does this effect his pay. Owner 2 tells him not to worry about it, that he will get paid, and it was left at that.

          Than owner 2 called over the weekend and asked my husband to come into the restaurant on Monday to meet with all 3 owners. He went and they discussed the situation. He was told that they would get back to him to let him know what thier dicision was.

          Owner 2 than called and and asked him to come back Tuesday night for a meeting. At that meeting with just owner 2, was when he was presented with the terms of his probation. etc...the previous unaceptable document.
          In the dark in a car in the parking lot. My huband was supose to sign and drop off Wednesday night , than report to work on Thursday morning.

          Once my husband read the part about the UI benefits, that were not discussed at thei meeting, and was advised not to sign this document. He called owner 2 on Wednesday evening and said that he would sign, beacuse of the language of the document. Owner 2 said that he would discuss with the other two owners and get back to him.

          Owner 2 than called back on Thursday morning and said that they were going to re-word the doucement, but than during this conversation it turned out that he was just fired.

          My son who happens to work here also, brought home my husbands check last night.

          My husband was a salary employee. Scheduled to work Tuesday-Saturday.
          He worked on Tuesday, Wednesday, and was told to go home on Thursday after incident. He was paid as an hourly empoyee on this check and was paid for the two days he worked his fulll schedule and 1 hour for Thursday.

          We are confused as far as Salary to Hourly goes and when his actual date of Termination is. Can you offer any advise?

          I'm sorry that this is so, so long. BUt the whole process has been very long , stressfull, and confusing.

          Sharon

          Comment


          • #6
            The issue is not whether he is salaried or hourly (which are merely pay methods), but whether he is exempt or nonexempt. What exactly were his job duties? We would have no idea what the employer specified as his termination date; the law does not address this specific issue.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              He was employeed as a cook in a restaurant.

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              • #8
                Although full-charge chefs may be exempt under certain circumstances, cooks are normally nonexempt and, as such, are entitled to overtime pay for all hours worked in excess of 40 in the 168-consecutive-hour period defined by the employer as the workweek.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                • #9
                  So all along he has been paid as a Salary Employee if he missed time in the regualr schedule 40 hour work week. These short hours were kept track of.
                  Than if they had another employee, etc... take time off he was asked to work those hours abouve the normal 40 in order to make this time up.

                  Are you saying that might have been wrong?

                  Also, ragrdless of being salary, should he have been paid for the entire day that he was asked to go home, or is just that one hour pay suffient?

                  I'm not saying we are going to do anything about any of this, but just trying to get all his facts/rights together in case he needs to.

                  Sharon

                  Comment


                  • #10
                    What I'm saying is that, as a nonexempt employee, he must be paid for all hours worked. Period. However, as a nonexempt employee, it was OK for them to pay him only for the hours worked when he did not work a full day. If he were exempt, that would not have been the case.
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                    • #11
                      OK, thanks very much for your help.

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                      • #12
                        You're welcome. Good luck to him.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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