Tag Archives: Termination

First Responders, Retaliation and Labor Law

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First responders and correctional employees aren’t immune from retaliation from their employers when they turn in work injuries for the unique hazards that they face. However, most first responders, law enforcement and corrections employees have some additional job protections against retaliation. This post is meant to give first responders, law enforcement and corrections employees a basic overview of the job protections they have as union and public sector employees. Those rights can be summed up in three words: Weingarten, Garrity and Loudermill.

Weingarten Rights

Weingarten rights are named after the Supreme Court decision that holds that union members have a right to have a union official present in a disciplinary meeting with supervisors or a meeting that could lead to discipline. Though Weingarten doesn’t apply to public sector unions, most public sector unions, including NAPE/AFSCME in Nebraska, make Weingarten rights part of their collective bargaining agreement.

Weingarten rights can be trampled on when aggressive employers claim they just want to talk to employees rather than subject employees to the third degree. This can be especially prevalent in corrections and law enforcement where supervisors are trained in interrogation techniques.

If you have been subject to an interrogation like this, you need to let your union representative know right away.

Garrity Rights

Garrity rights give public sector employees, regardless of whether they are in a union or not, the right to not incriminate themselves in an investigation that could lead to discipline. Employers will give a Garrity warning similar to a Miranda-type warning. In my experience, Garrity rights can be a bit dubious. Employee misconduct that would justify termination doesn’t always rise to the level of anything remotely illegal. This is especially true if an employer is trying to manufacture evidence to retaliate against a worker. But under Garrity, an employee can be terminated for refusing to answer questions. So employees may feel compelled to answer hours of questions from trained law enforcement officials for alleged misconduct that, even if true, would not rise to anything illegal. This can be a dangerous proposition because such questioning may create the appearance of dishonesty on the part of the employee. Especially in the context of law enforcement or corrections, dishonesty can be a factor that allows an employer to skip the normal progressive disciplinary procedures.

Again, employees should reach out to their union representative if they are faced with this situation.

Loudermill Rights

Loudermill rights compel public employers to give some explanation of why they are terminating an employee and give the employee some opportunity to explain why she or he should not be terminated. (7) Loudermill applies to all government employees, not just union employees. Though Loudermill gives additional protections to what typical at-will employees have, in substance, Loudermill doesn’t afford a lot of protections. In many cases, the decision to terminate has already been made, and feedback from an employee may harm the employee’s chances of winning at a personnel board, arbitration or a wrongful-termination case.

Again, employees should be reaching out to their union representative if they are subject to what is called a Loudermill hearing.

Personnel Board and Arbitration Hearings

Government employees can usually appeal terminations to a personnel board, such as the Nebraska State Personnel Board, or have a termination heard by an arbitrator if the worker is represented by a private union. These hearings are easier for employees to win than wrongful termination cases because generally the employer has the burden to show there was just cause to terminate the employee. In civil court, the employee has the burden of proof that the termination was unlawful. Those hearings can also generate evidence that can be helpful in wrongful termination cases. In many cases, the union will pick up the cost of a personnel board hearing or arbitration.

This post has repeatedly mentioned the importance of involving a union representative and the benefits to employees of a union contract. Nebraska is what is called a “right-to-work state,” which means that employees covered under a union contract cannot be forced to pay union dues. However, if workers do not pay dues, unions may not have the resources needed to fight for their members. The opinion of this firm is that unions in Nebraska, like NAPE/AFSCME, do a good job of fighting for their members, so we would encourage public employees in Nebraska to pay their union dues.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Workers' Compensation and tagged , , , , , , , , , , , , .

Can I Get Fired For Filing Bankruptcy?

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Low and middle income people are the last people to benefit from any economic recovery. For many economic recovery means a return to work the opportunity to put their household finances in order with steady income provided by a job. Unfortunately unpaid debts often mean that employees get garnished  or even having to file bankruptcy.

Congress intended for bankruptcy to allow for people to get a fresh start so they prohibited discrimination based on bankruptcy and even let employees sue employers for such discrimination. But this law is not as strong as other laws prohibiting discrimination on factors such as race or sex for two reasons.

First of all, your status as a debtor in bankruptcy must by the sole cause of job loss. Discrimination is difficult enough to prove already under either a motivating factor or proximate cause standardsole cause is more exacting than even the difficult proximate cause standard. If your employer has any other legitimate reason to fire you besides your bankruptcy, then a court will likely find the termination was lawful. The only way for an employee to preserve any type of discrimination case is not to give the employee a reason to terminate them because of their poor performance , attendance or poor attitude. But even good employees can get fired legitimate reasons such as restructuring and economic reasons.

Secondly most courts do not believe that bankruptcy discrimination prohibits employers from failing to hire employees based on bankruptcy.

Title VII and most state anti-discrimination laws state that a failure to hire based on certain protected categories is unlawful activity.

Finally in any discrimination claim, the employer needs to be aware of your protected status. In a bankruptcy discrimination case this means that your employer had to have known about your bankruptcy status prior to firing you. Some employees get fired because  employer doesn’t want to deal with a garnishment.  Most people, me included, think that such an action is wrong or unfair. But unless your employer knows that garnishment is linked to your bankruptcy status, then firing you based on that garnishment is legal  — unless the garnishment is a cover or pre-text for another unlawful reason.

I would encourage anyone reading this post to contact their U.S. Senator or Congressperson and ask them to change the bankruptcy discrimination statute to mirror other federal anti-discrimination laws such as Title VII.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in discrimination, employment law, Supreme Court and tagged , , .

What Football Can Teach White-collar Employees About Layoffs, Severance

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With football season upon us, I would like to use football to explain some common situations that employees face.

I get a lot of calls from white-collar professionals who have long careers with a company but then are laid off a few months after a new boss is hired. This happens a lot in football when a general manager/athletic director replaces a head coach and the head coach fires the previous coach’s assistant coaches. White-collar employees in middle-management positions are essentially the equivalents of assistant coaches in football. In the world of football, it is assumed that a new head coach can bring in his new assistants. The same assumption holds true in the business world.

Assistant coaches are oftentimes “bought out” of their employment contracts. Sometimes white-collar professionals have employment contracts, but more often than not they do not. Sometimes professionals are offered severance agreements, but unless there is an employment contract, that severance is not a buyout. Employers are also under no obligation to offer severance. If severance is offered, that doesn’t necessarily mean that an employer wrongfully terminated the employee.

Of course, no employee can be terminated because of age, disability, sex, race, nationality, or in retaliation for engaging in a protected activity like filing for workers’ compensation or filing with OSHA. But even if there is some appearance of wrongful motivation on behalf of the employer, the employer can still defeat a potential lawsuit if they have a legitimate business reason for terminating the employee. Going back to a football analogy, if the new head coach wants to switch an offensive or defensive scheme, they have the right to hire the person they choose. The fact the new hire might be less effective than the old hire is not a decision that a court will second guess in a wrongful termination. Sure, if there is something else wrongful going on, it is something a court or a jury could consider, but in a case where there is a recent change in management, employees will have difficult time overcoming the assumption that the new boss just wants to “put in their team.”

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, getting fired and tagged , , , , .

Will I Be Able To Collect Unemployment Benefits?

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When people are hurt at work, they are often compelled to file for unemployment benefits. This may be because they are fired for not being able to do their job or end up quitting because they are no longer physically able to do their job.

If you quit, you will have to show that you did so with good cause. If you physically can no longer do your job because of your injury, that qualifies.

If you have been terminated, your employer may attempt to withhold unemployment benefits. To do this, your employer will have to demonstrate that you were terminated because of a misconduct on your part. Misconduct is intentional behavior by you. For example, if you are not performing at work even though you are medically capable of doing your job and have been told to improve, if you call in sick numerous times for unnecessary reasons, or if you don’t show up for work, these behaviors would qualify as misconduct.

Your employer would have to show documentation of these behaviors at an unemployment hearing. If documentation is not available and it comes down to your word versus your employer’s word, the likelihood is that you will win your case and will be able to collect unemployment benefits.

If you have questions about employment issues or unemployment benefits, our attorneys are licensed to practice in Nebraska and Iowa. I can also refer you to an expert attorney in another state if needed.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Unemployment and tagged , , , , .