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  • Manager Wisconsin

    After returning from a medical leave, a 5 year exempt, salaried, employee is terminated and the explaination given was "economic termination" and that staff reductions were being made to offset these losses, yet that same week there were ad's in the local paper for the same position being advertised, as well when the employee applied for unemployment the employer contested the unemployment stating the termination was due to excessive absenteesim, theft and conducting personal matters on company time, yet there was no mention of this to the employee as being a concern of the employer and there were no previous warnings verbally or written. Is this illeagel termination? What legal action can the employee take? If there was unused vacation time earned from the previous year but not used is the employee able to collect for the time coming? Can an employer terminate and employee for "any reason at all"?

  • #2
    How long was the medical leave?
    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.

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    • #3
      Originally posted by Doug_G View Post
      Can an employer terminate and employee for "any reason at all"?
      No, it cannot be for a reason prohibited by law. Firing a male because he is a male would be illegal. Firing the only male in the company because he was suspected of stealing from the company or suspected of violating company policies would not be illegal (the burden of proof will be on the company, both at an unemployment hearing and in court, should the fired employee sue for wrongful discharge).

      Warnings are nice. They are not legally required before a person can be fired.

      I have no idea where Wisconsin stands on earned, unused vacation. Some states require it to be paid, some don't, some require companies to follow their company policies or past practice.
      Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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      • #4
        Manager

        Originally posted by cbg View Post
        How long was the medical leave?
        It was 8 weeks over the winter period. The injury occurred while working for a previous employer.

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        • #5
          Did FMLA apply? http://www.dol.gov/esa/regs/complian...pdf/fmlaen.pdf

          How much time was missed total? Was there reason to suspect theft? Was time spent on personal matters? There are many reasons why such suspicions may not be shared with the departing employee. Particularly with issues like theft, a warning isn't required prior to termination. Terminating for excessive absences, so long as those absences are not protected by FMLA, suspected theft and spending time on personal matters are all legal. The employer need not prove that the employee was guilty of theft, so long as there is reason to believe the employee was involved.

          It is however, always suspect when someone is terminated immediately following a medical leave, particularly if that leave falls under FMLA. Unless this suspected theft was not realized until the employee was away, it does raise red flags.
          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.

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          • #6
            Manager

            The total time off was 8 weeks, it was a workers comp claim that went back to the previous employer, not the one that did the termination. The accused theft was that of discarded unsalable product, (plant material) that employees were allowed to take. The personal matter was stated as 'grocery shopping' at 1:00 pm when actually it was a lunch purchase from a deli. The employee had accrued the maximum 30 days sick time, (1/2 day per month over the 5 year period), up to the time off, which was not used for the occurance since it was a workers comp claim. The employee had no full days absent over the 5 year period, only early departures for Doctor appts. prior to the medical leave.

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            • #7
              It sounds fishy at best if the employee truly was on an approved lunch break, took home product that he was authorized to take, just returned from FMLA and those were the only absences and the same job is now being advertised. It is worth running by a lawyer or the DOL.
              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.

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              • #8
                Manager

                Thank you for your information.

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                • #9
                  Originally posted by Doug_G View Post
                  If there was unused vacation time earned from the previous year but not used is the employee able to collect for the time coming?
                  To answer this question: Wi. employers are required to pay earned vacation and/or sick days upon separation unless employment policies provide otherwise.

                  I would contact a lawyer or the DOL as suggested re your termination.
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                  • #10
                    Originally posted by Betty3 View Post
                    To answer this question: Wi. employers are required to pay earned vacation and/or sick days upon separation unless employment policies provide otherwise.
                    Sick days, Betty? Really? Can you provide the cite?
                    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
                      Manager

                      Thank you.

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                      • #12
                        Originally posted by Pattymd View Post
                        Sick days, Betty? Really? Can you provide the cite?
                        Well, it was in a book - sect. written by labor/employment attorney Wi. (This is the whole thing.) Payment of earned vacation and sick days requirement on termination of employment: Employers are required to pay earned vacation and/or sick days upon separation unless employment policies provide otherwise.
                        "Use it or lose it" policy: Employers may implement a "use it or lose it" policy so long as it's communicated to employees in writing at their time of hire and if the employer can show that it has a well-established policy and practice.
                        Wis. Stat. 109.01(3):
                        "Wage" or "wages" mean remuneration payable to an employee for personal services, including salaries, commissions, holiday and vacation pay, overtime pay, severance pay or dismissal pay, supplemental unemployment compensation benefits when required under a binding collective bargaining agreement, bonuses and any other similar advantages agreed upon between the employer and the employee or provided by the employer to the employees as an established policy.
                        Wisconsin courts have accepted the argument that treatment of accrued sick allowance is included in Wis. Stat. 109.01(3) as wages. However, the court cases specifically deals only with accrued sick allowance at termination of employment. It makes no reference to any right to current payment for accrued sick allowance.
                        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                        • #13
                          I think the hook there is "when required under a binding collective bargaining agreement bonuses and any other similar advantages agreed upon between the employer and the employee or provided by the employer to the employees as an established policy."

                          I'd be interested in seeing any cases where the law required that accrued sick time be paid out at termination. If you don't have anything else to do, that is?
                          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                          • #14
                            Not definitive, but I ran a Google search against the code referenced, and the only cases I am finding is where the employee(s) tried to argue that there was a general obligation (not just company policy or CBA) for the employer to pay sick pay balances and those employees lost their cases.
                            "Reality is that which, when you stop believing in it, doesn't go away".
                            Philip K. **** (1928-1982)

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                            • #15
                              I found that it is required for public sector/ state employees.
                              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.

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