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Thread: New York - Wrongful Termination?

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    Default New York - Wrongful Termination?

    My daughter worked part-time for a firm and was friends with one of her supervisors. Unfortunately the friendship went bad and the supervisor started harassing my daughter and berating her using information my daughter had shared with her about her border-line personality disorder, my daughter was a "cutter". The supervisor shared this info with another employee and between the two of them they would text my daughter from work until my daughter went to another supervisor to complain and as a result, shared the texts to show the harassment. The second supervisor contacted someone from HR and all three of the employees, my daughter and the first super and the accomplice, and told to wait till things got straightened out. My daughter was contacted a few days later and was told she was terminated because of langauge in the text, (the langauge at that point had become foul on both sides, my daughter felt her back was against the wall) it was a violation of company policy. The only way the company got the info was from the investigation, can that really be used against my daughter as grounds for termination? do they have any grounds for termination

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    Based on what you posted, I don't see a wrongful termination. In at-will employment you can be terminated at any time for any reason except a reason prohibited by law (ie age, religion, gender...) or unless you have a binding employment contract to the contrary.

    She needs to look for other employment & apply for unemployment ins. The state will decide if she qualifies.

    http://en.wikipedia.org/wiki/At-will

    http://employeeissues.com/wrongful_termination.htm
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    Sounds complicated. The "default" is employment-at-will. Meaning either party in the employment relationship can legally end the relationship without cause. The vast majority of all terminations are legal because there is no legal requirement for "cause".
    http://en.wikipedia.org/wiki/At-will

    Whenever we talk about wrongful termination we are talking about an actual law being violated. For example, terminated a woman because she is a woman violates Title VII. Terminating her because it is Monday or a baseball fan however is legal.

    In your example, there might be a sexual harresment claim. On the other hand, anyone sending text messages with bad language could be considered adequate cause for termination. You can argue that everyone who used bad language should also be terminated, but the law does not really say that.

    This is complicated, as in no easy answer giving you what you want. You have several parties not behaving well. Meaning based on what you have said any judge could very reasonably support various decisions. You might need to talk directly ($$$) to an attorney specializing in wrongful termination.
    http://employeeissues.com/wrongful_termination.htm
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    So, my initial understanding was that if an employee files a complaint of harassment or discrimination, which was why my daughter went to her employer, she can not be terminated based on the complaint or because she used the text messages as part of the complaint. Is that not correct?

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    Only if the harassment/discrimination was illegal harassment/discrimination.

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    The employee can claim that SH occured and the employee can claim that the reason for the termination was because of the SH. However, the employee claiming that something is so and proving that something is so are two very different things. The employer is allowed to respond and their responce will likely say something very different from the employee's. What you describe seems to be not nothing, but also not slam dunk. Based on what you have said, the employee has taken actions which will not reflect well on their claim.

    Again, the employee needs to talk to a lawyer who speclializes in termination law in your area. Someone who can spends hours talking to the employee and getting real detailed information.

    No one on this website is saying that the employee certainly has a claim or even likely has a claim. We are at most saying that the employee possibly has a claim.
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    On what basis is you daughter claiming she was harassed? If it is because she had a falling out with her friend who happened to be her supervisor, then no law is going to cover that. The law doesn't require supervisors to like or even be civil to their employees only refrain from discriminating against them in the workplace on the basis of certain legally protected characteristics. Texts sent apart from work would not count as workplace discrimination.

    Your daughter can legally be fired for using foul language toward her supervisor however. Filing a complaint in no way insulates an employee from misconduct on their behalf. Think of it like your parent child relationship if you will. While it isn't good for you to yell at your kid and no one is going to condone it, but that doesn't mean you must allow your kid to call you foul names because they are upset with you. You are the parent and in charge much like a supervisor. While swearing when upset may be understandable, neither the child nor employee gets an automatic "pass" on bad behavior.
    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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    Unfortunately the friendship went bad and the supervisor started harassing my daughter and berating her using information my daughter had shared with her about her border-line personality disorder, my daughter was a "cutter". The supervisor shared this info with another employee and between the two of them they would text my daughter from work until my daughter went to another supervisor to complain and as a result, shared the texts to show the harassment

    That does not constitute any form of prohibited harassment. The supervsior and other employee were incredibly rude, childish and just plain mean but that's not illegal.

    My daughter was contacted a few days later and was told she was terminated because of langauge in the text, (the langauge at that point had become foul on both sides, my daughter felt her back was against the wall) The correct thing for your daughter to have done as soon as she started being abused by her supervisor was to inform HR and show them the texts. Responding in kind and using foul language was very ill-advised on her part.

    The only way the company got the info was from the investigation, can that really be used against my daughter as grounds for termination? Yes. They may lawfully terminate her for misconduct on your daughter's part that was uncovered during the investigation.

    Nothing in your posts remotely suggests this was a wrongful termination. The supervisor and other employee behaved very badly but your daughter did as well.

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    If the supervisor and the coworker harangued her because of personality disorder, such harassment could arguably constitute impermissible disability-related harassment under state law and possibly under federal law.

    The context of the foul language in texts may prove pivotal here. A potential retaliation claim could turn based on who said what. Also, did the employer similarly terminate the supervisor and the coworker? Does the employer routinely terminate an employee for his or her “first offense” involving of foul language? The answer to these questions could provide the needed insight into whether pursuing a retaliation claim is indeed viable.

    Accordingly, OP, you and your daughter may want to speak with a NY employment law attorney and/or a knowledgeable representative of the state or municipal FEPA to weigh her options.

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    Quote Originally Posted by Beth3 View Post
    The only way the company got the info was from the investigation, can that really be used against my daughter as grounds for termination? Yes. They may lawfully terminate her for misconduct on your daughter's part that was uncovered during the investigation.

    Nothing in your posts remotely suggests this was a wrongful termination. The supervisor and other employee behaved very badly but your daughter did as well.
    Both of the employees threatened to do physical harm to my daughter along with the "cyber-bullying". Since both are illegal acts and reporting them to the supervisor should immediately start a legal proceeding, your justifications seems off to me. The only way to prove the action was to turn over the texts, so now they are able to use this as a double edged sword? The texts from the employees came from them at work, my daughter was not at work. The misconduct you speak of didn't happen on company time and therefore violates no company policy.

    She has already filed paperwork with the EEOC for wrongful termination and went through the channels listed in the employee handbook, so now it's a waiting game. It appears her complaint was truthful, which protects her under the law, and factual, which also protects her. As for using her evidence against her in a harassment filing, that seems to be the only vilotaion of law, but we'll let the big dogs decide.

    One last thing, my daughter is a minor, the other two are not. Not sure what that may mean in the grand scheme of things but it may weigh on the outcome somewhat.
    Last edited by sigmund87; 03-20-2012 at 08:59 AM.

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    Both of the employees threatened to do physical harm to my daughter along with the "cyber-bullying". Since both are illegal acts and reporting them to the supervisor should immediately start a legal proceeding, your justifications seems off to me.

    Threats of physical violence may violate criminal laws but they don't violate any employment laws, therefore the employer had no obligation to respond to your daughter's complaint. The employer chose to investigate but they weren't legally obligated to do so. If your daughter wanted to pursue a possible criminal violation, she was free to file a complaint with the police; the employer could not do that on her behalf - that was entirely up to your daughter.

    The only way to prove the action was to turn over the texts, so now they are able to use this as a double edged sword? Yep. Your daughter was also well aware that the back-and-forth texts showed her own bad language.

    The misconduct you speak of didn't happen on company time and therefore violates no company policy. That's completely irrelevant. The employer is free to take whatever action it deems appropriate when two or more employees are engaging in bad behavior towards one another, even if it is not on company time or company property.

    She has already filed paperwork with the EEOC for wrongful termination and went through the channels listed in the employee handbook, so now it's a waiting game. Okay but unless any prohibited discrimination occurred, the EEOC won't have anything to do with the situation. They don't arbitrate bad behavior between employees and what the employer may or may not do about it.

    It appears her complaint was truthful, which protects her under the law, and factual, which also protects her. Protects her from what? She's already been terminated and lawfully so. At this point, protections provided under federal discrimination laws that prohibit an employer from retaliating against an employee making a good faith complaint of discrimination are a moot point.

    One last thing, my daughter is a minor, the other two are not. Not sure what that may mean in the grand scheme of things but it may weigh on the outcome somewhat. . Makes no difference other than one would hope the two adults involved would have behaved more like adults. That's not a legal issue however.

    It appears your daughter was treated unfairly but "unfair" has no legal recourse.

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    If your daughter is cutting herself that is serious and you as her parent need to get her treatment and care ASAP. Forget work and squabbles with former friends, her life is far more important. File whatever you want to file wherever you care to, but focus on the big picture here. You've got a kid who has made some poor choices in who to trust and who has reacted inappropriately to conduct from others. Coupled with her history, that is a huge red flag that the girl needs some serious help. If you don't know where to turn, contact your local mental health office or her school guidance department. Yes, getting fired and losing the friendship of a former supervisor is bad but it pales in comparison. Teenagers are impressionable beings and if this is one of her first jobs, she needs to learn how to handle adverse situations that may arise during employment in the future. Waiting until it reaches the boiling point and then going off in a profane manner is not even close to appropriate and can lead to outcomes far worse than the loss of a PT job. Parents are too close to the situation to be objective so you really need to reach out to a 3rd party.

    The employer is not required to treat all parties the same as they are not similarly situated. They may treat the supervisor differently than a subordinate and a long term employee differently than someone who has only been there a short time. That is completely legal even if you do not find it fair. You also do not know nor should you know, what action the employer may have taken with the supervisor.

    Whether or not you have a criminal or civil complaint againt the former friend is a totally separate matter from employment. Currently there is not a cyberbullying law in NY though one is proposed. Existing laws only cover policies addressing bullying behavior in the school environment and do not extend to off camous activity. If there are physical threats then you start down the road of criminal law in which case you need to go to the police. Employers are not courts and are only bound to adhere to employment law. Employment law does not cover friendships gone awry and texts sent between former friends.
    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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    Quote Originally Posted by Beth3 View Post
    Threats of physical violence may violate criminal laws but they don't violate any employment laws, therefore the employer had no obligation to respond to your daughter's complaint.
    Are you serious?? Other than being able to log on here, what are your qualifications? You have so many answers that contradict themselves and the laws it's seems hard to lend any credibility to anything you have stated.

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    Quote Originally Posted by sigmund87 View Post
    Are you serious?? Other than being able to log on here, what are your qualifications? You have so many answers that contradict themselves and the laws it's seems hard to lend any credibility to anything you have stated.
    What employment law do you think threats of violence violate? Many companies have policies against threats of violence but it is not because it is the law. I have had employees who say each other threatened them. Neither wanted to work on a solution so I solved it by firing them both.

    Speaking as a mother of two teen girls, maybe the best thing is to take your daughter's phone away from her until she matures. No phone will allow a situation to calm down and allows a person to think before replying. From your post, your daughter's behavior (texts) escalated the problem.
    Last edited by HRinMA; 03-21-2012 at 06:46 AM.

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    Quote Originally Posted by sigmund87 View Post
    Are you serious?? Other than being able to log on here, what are your qualifications? You have so many answers that contradict themselves and the laws it's seems hard to lend any credibility to anything you have stated.
    You came here asking questions about E-M-P-L-O-Y-M-E-N-T. L-A-W.
    What you have received are the facts on E-M-P-L-O-Y-M-E-N-T. L-A-W.

    Whether or not you choose to believe as stated, is your prerogative.
    Rather than turn this into a pissing contest with the other members, I would urge you to consult with an Attorney and PAY for the same advice you have received here free.
    Any questions about qualifications you may have should quickly be put to rest as well.
    Anything else offered is out of concern for your daughter.
    Good Day.

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    Are you serious?? Completely.

    Other than being able to log on here, what are your qualifications? 30+ years of experience dealing with employment law and the employment relationship. How about you?

    You have so many answers that contradict themselves and the laws it's seems hard to lend any credibility to anything you have stated. I haven't contradicted myself. You just don't like the answers.

    Free free to consult with, and pay for, an attorney who will tell you the same things that I have.

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    Quote Originally Posted by drruthless View Post
    You came here asking questions about E-M-P-L-O-Y-M-E-N-T. L-A-W.
    What you have received are the facts on E-M-P-L-O-Y-M-E-N-T. L-A-W.

    Whether or not you choose to believe as stated, is your prerogative.
    Rather than turn this into a pissing contest with the other members, I would urge you to consult with an Attorney and PAY for the same advice you have received here free.
    Any questions about qualifications you may have should quickly be put to rest as well.
    Anything else offered is out of concern for your daughter.
    Good Day.

    ..________________
    ~ Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. ~ Isaac Asimov
    The great thing about the internet is that a bunch of hacks can come on here and claim anything they want with the expectation that all others will and should believe them. I am sure that some of the info contained within may actually be correct, but I suspect most is based solely on speculation. One thing I learned many years ago raising horses was that anyone who ever walked near a horse considered themself an expert on the beast, the most "expert" were the folks that boarded their horses and left their horse's care in a strangers hand, they always knew the most. I pay my vet and my farrier for their advise, they are the only ones I take seriously. Thanks for all the wonderful information, it was worth every penny. Don't get angry because I tend not to believe most of you, I'm sure that this isn't the first time you've been in that boat.

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    About time this user learned some manners and the thread was locked, I suspect?

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    Feel free to pay as many lawyers as you like to give you the same information. I'm sure if you try hard enough you can find one that will agree with you for a big enough retainer.
    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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    Quote Originally Posted by sigmund87 View Post
    The great thing about the internet is that a bunch of hacks can come on here and claim anything they want with the expectation that all others will and should believe them. I am sure that some of the info contained within may actually be correct, but I suspect most is based solely on speculation. One thing I learned many years ago raising horses was that anyone who ever walked near a horse considered themself an expert on the beast, the most "expert" were the folks that boarded their horses and left their horse's care in a strangers hand, they always knew the most. I pay my vet and my farrier for their advise, they are the only ones I take seriously. Thanks for all the wonderful information, it was worth every penny. Don't get angry because I tend not to believe most of you, I'm sure that this isn't the first time you've been in that boat.
    Then why post in the first place? If we had agreed with you would you have then considered us experts?

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    Raised horses have you? Well then you must have heard of the term you can lead a horse to water but you can't make him drink?
    Now if thats gone over your head, I'm sure one of the other hacks will be glad to come along and explain that to you.

    I would be inclined to agree and close this thread, nothing is going to change and it's only purpose now is for it's entertainment value.

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    I’m happy to admit to mine,
    and even happier when I can point out yours.
    Last edited by drruthless; 03-23-2012 at 07:57 AM.

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    Wow, I'm just amazed that OP insulted and blew off several people that each by themselves have more employment law knowledge than 90% of employment attorneys out there. (And which has been acknowledged in writing by at least several employment law attorneys here and on other sites.) And called them hacks! Unbelieveable! Wow again! I think OP should be barred from here, she obviously doesn't have the mental ability to deal with the experts here.

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    I think it's about time we ALL stopped fueling the fire. If the OP has anything further she wishes to say about the applicable law (NOT about her opinion of the responders), she can PM me and I'll reopen the thread. A link to the law she believes was violated would be nice. It is certainly not my intent to stop her from responding with any legal information she wishes reviewed. But I think the general tone of this thread has deteriorated suffiicently so that we need not keep it open any longer.
    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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