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Unemployment-I feel it was wrongful termination.Did I defend myself well? New Jersey

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  • Unemployment-I feel it was wrongful termination.Did I defend myself well? New Jersey

    I was fired from my job because of a comment I posted to an ex-coworker. The comment was posted on my own time (lunch) and in my car. So I did not break any company rules: harassment nor internet or computer abuse. They assumed the comment was work related, while I’ve known this person for 6 years.
    Unemployment was told I was "separated in misconduct in connection to my work. " My VP told me I wasn’t being fired for work performance, just because of the comment. I feel that contradicts their reason for separation.
    The company did not follow termination protocol: a verbal warning and two write ups. I have NO warnings or write ups in 4+ years.I sent in our handbook policies; an email from HR on the steps to termination and a doc from the VP about how to fire: which state 3 write ups and to base it upon actual facts; also my lunch receipt as I was exempt employee so they did not track our times.
    This company is known to lie to UE and I am worried about the examiner's interview.
    Is there anything else I can do? Do I have a solid case? Should I hire a lawyer? I don't feel like I'm wrong because I followed the company rules, but they lie to UE every time.

    This is the comment:
    "I was just about to come find you!! i am so sorry that n.n. attacked you. remember you're better than her in every way! shes like 50 and unmarried with no kids. she probably hates herself and takes it out on decent ppl"
    I have made it a point not to friend ex or current coworkers on facebook, but knowing her for so long I made the exception.

    The company also refused to give me a copy of my termination papers, which I refused to sign as I did not agree with the termination. I did write on it that I didn’t break any rules and I didn’t agree with them.

  • #2
    Based on what you have posted, this was not a wrongful termination as defined by law. Wrongful termination does not mean one that is unfair or that the company didn't follow their own protocols; to qualify as a wrongful term there must be a specific law (not company policy - a law) that was violated by terming you.

    Receiving unemployment does not mean that the termination was illegal.
    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.


    • #3
      Check your employee handbook closely. If there is one or more prominent disclaimers in your handbook essentially asserting that you are an employee at-will and that the employer can abrogate the policies set forth therein with impunity, then you do not appear to have any basis for challenging your discharge based on the fact the company did not follow its own procedures. IF, however, such a disclaimer does not exist in the handbook, then you should contact a local attorney to explore a breach of implied-in-fact contract.

      The irony (and/or perhaps tragedy) of your case is that if you wrote a co-worker on Facebook you may have had job protection under Section 7 of the National Labor Relations Act (which protects communication amongst employees concerning work conditions). Unfortunately for you, you wrote an ex-employee. Since you did not communicate with a current employee, you likely cannot rely on Section 7 to challenge your discharge.


      • #4
        wouldn't be covered by NLRA even if it was a current employee...

        I would not consider the post the OP quoted as being about working conditions, even if the post WERE to a current co-worker. She made a disparaging personal comment about a supervisor or colleague online. Perectly fine reason for terminating.
        Plus it could even possibly be considered protected class harassment if "N. N." learned about it, since marital status is a protected class in NJ.
        Last edited by TSCompliance; 11-03-2011, 10:31 AM.


        • #5
          The National Labor Relations Board (“NLRB”) may disagree with your assessment.

          The NLRB General Counsel’s Office filed an Unfair Labor Practice Charge (“ULP”) last fall against American Medical Response, a Connecticut ambulance company, which fired a medical technician who posted exceptionally unflattering comments about her boss. Upset at a particular assignment, the technician posted from her home computer on her personal Facebook Page, “Love how the company allows a 17 to be a supervisor,” referring to a code for a psychiatric patient. She later referred to her supervisor as a “scumbag as usual” and a “****.” Her co-workers responded with favorable comments to her posts.

          Soon thereafter, American Medical Response terminated the technician, ostensibly for purported job performance deficiencies. Nonetheless, in the ULP the GC charged American Medical with violating the employees’ exercise of their rights under Section 7 of the NLRA. The ULP maintained that her comments regarding the supervisor constituted protected concerted or group communication under Section 7 relating to work conditions.

          On February 7, less than four month after the filing of the ULP, American Medical settled on terms favorable to the employee and the GC, agreeing to, inter alia, rehire the technician with back pay and no longer discipline employees for discussing wages, hours and workplace conditions. In addition, this year the GC has successfully pursued other employers under analogous circumstances for Facebook-related violations of employees’ Section 7 rights.

          If the above-described comments from the American Medical case constitute protected communication, it is difficult to fathom any comments – short of actual assaultive language – a worker could share with his colleagues on Facebook which would not be protected.


          • #6
            I don't see that the comment was about a manager. OP does not say whether it is a manager or coworker.


            • #7
              As nothing work related was mentioned in the comment, it would be a huge stretch to call this a NLRA violation. You even admit it is not work related but based on personal issues. Considering the OP disparaged this person on at least 2 protected fronts (age over 40 and marital status), as well as just being a mean comment and highly unprofessional, the company could very well face liability if they did not take action.

              Unless your company has a contract that guarantees at least 3 warnings first, it is not required that they do so. In an extreme example, if you embezzled money would you have to do it 3 times over before they could fire you.

              How is this contradicting the reason for your termination? It sounds like the exact reason you were terminated.
              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.