Soxtalk Lawyers

[Texsox]

Of course nothing you may say in this thread will be taken as legal advice. Actually I am trying to decide how hard to push my mother to consult with a labor attorney. In a nutshell.

 

She is 70 years old and had worked for the same company for twenty years.

She has a spotless work record, receiving raises every year.

She is the most senior employee.

She was recently out on medical leave for eight weeks having surgery and rehabbing.

She was released by the doctors to begin work today part time for a week, then full time.

Her employer called her and suggested the meet at a restaurant. When she got there they informed her they were eliminating her position. They offered her three weeks severance, said they would not fight any unemployment claims, and in the paper it was stated she could consult with an attorney.

 

She believe that since they wrote she could see an attorney, and the owner's brother graduated from law school, that this is all legal. I think it is b.s. and possibly violates the medical leave act.

 

BTW, she is not on their insurance or their short term disability so she is not negatively impacting their insurance rates.

 

So how hard should I push her to visit with an attorney before signing anything?

[southsider2k5]

If she is "at will", she is getting a pretty good deal, as the company doesn't have to justify getting rid of her. It isn't a bad idea to consult an attorney, but it probably won't matter unless they can prove it was age or health related, which is about impossible unless the company has a pattern of behavior.

[HuskyCaucasian]

I've talked with someone about this once. My understanding is that "eliminating her position" is a very sly way of firing someone with little recourse. She wasnt replaced, the position was eliminated. What they then do is rewrite the job description (add or remove responsibilities) and then fill that position. It's technically not the same.

 

I am not a lawyer. this is based on a conversation I had once with a lawyer. It may not be 100% accurate.

[Soxbadger]

Tex,

 

The best advice any lawyer can ever give you is, consult a lawyer that specializes in that area in that state. Every state has different laws with regard to employment. Many attorneys would gladly meet with her at no charge, but she may have to spend a few hundred dollars in the process. That being said, I assume that this matter is worth far more than a few hundred dollars. Do you want your mother to take a risk? Do you want to make sure that whatever happens at least she got good advice?

 

If the answer is yes, strongly advise your mother to meet with an attorney before signing anything. At minimum having an attorney may give her leverage for a better deal.

 

That being said, your mother is may be right, what they are doing is may be legal, they are offering her a severance package and she is signing away her rights. But that does not mean the act of eliminating her position or terminating her, etc is legal. It does not mean that she may not have legal recourse for their actions. But in most states you can legally sign away your rights for consideration.

 

I have seen these agreements in Illinois, you really need to know what you are doing to fully understand the dynamics. There is age discrimination, medical leave, state specific labor laws, contract law, a miss understanding of any of these areas could result in your mother signing away her right to considerably more money.

 

This is 20 years of your mothers life, I have to believe this is an important decision.

Edited March 29, 2012 by Soxbadger

[Texsox]

It appears as if they are interviewing for a newly created position that encompasses about 2/3rds of my mother's position and a swap with another employee for the rest.

 

The timing with the medical leave seems suspicious.

[southsider2k5]

It appears as if they are interviewing for a newly created position that encompasses about 2/3rds of my mother's position and a swap with another employee for the rest.

 

The timing with the medical leave seems suspicious.

 

It also makes it much harder to prove they were targeting your mom because of health.

 

Is Texas an "at-will" state?

[farmteam]

Tex,

 

The best advice any lawyer can ever give you is, consult a lawyer that specializes in that area in that state. Every state has different laws with regard to employment. Many attorneys would gladly meet with her at no charge, but she may have to spend a few hundred dollars in the process. That being said, I assume that this matter is worth far more than a few hundred dollars. Do you want your mother to take a risk? Do you want to make sure that whatever happens at least she got good advice?

 

If the answer is yes, strongly advise your mother to meet with an attorney before signing anything. At minimum having an attorney may give her leverage for a better deal.

 

That being said, your mother is may be right, what they are doing is may be legal, they are offering her a severance package and she is signing away her rights. But that does not mean the act of eliminating her position or terminating her, etc is legal. It does not mean that she may not have legal recourse for their actions. But in most states you can legally sign away your rights for consideration.

 

I have seen these agreements in Illinois, you really need to know what you are doing to fully understand the dynamics. There is age discrimination, medical leave, state specific labor laws, contract law, a miss understanding of any of these areas could result in your mother signing away her right to considerably more money.

 

This is 20 years of your mothers life, I have to believe this is an important decision.

 

Seconded. This is a great answer.

 

Interestingly (to me, anyway), I just finished up a brief that dealt solely with the FMLA (Family and Medical Leave Act). That by no means I can give you adequate advice (as the quoted post mentions, that requires knowing way more about the applicable law and your mother's situation...and not to mention I'm only a law student, not a lawyer), but I will say that, in general, an employee is eligible for up to 12 weeks of leave under the FMLA. There are two types of FMLA claims employees make -- "interference" (where the employer does not let the employee take leave) and "retaliatory" (where the employer retaliates in against the employee in some way because the employee took FMLA leave they were entitled to). Sounds like your mother's claim falls under the latter category.

 

Here is a link to the pertinent federal regulations, if you're curious. By no means should you look at that and decide on your own if your mother has a claim, but if you want a general guide as to what sorts of things qualify, and what rights the employer and employee each have, that's a good place to start.

[Texsox]

It also makes it much harder to prove they were targeting your mom because of health.

 

Is Texas an "at-will" state?

 

 

She is in Illinois.

[southsider2k5]

She is in Illinois.

 

Which is an at will state.

[Texsox]

Yes but

 

 

§ 825.214 Employee right to reinstatement.

General rule . On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. See also §825.106(e) for the obligations of joint employers.

 

The timing is suspicious

[Soxbadger]

Tex,

 

Have your mother consult an attorney. The facts seem at minimum suspicious and the only risk is that they dont pay her 3 weeks severance.

 

That is the biggest problem here, they didnt really make a substantial offer to convince your mother to leave. Youve got FMLA, let alone age discrimination, etc.

 

Furthermore, at will is not that relevant. At will employment means that you can terminate someone for any reason or no reason, provided that the reason is not ILLEGAL or against the public policy of the state.

 

So yes, I can terminate your mother at will, but no I can not terminate her because of her age or because she took FMLA, which would be the argument that your mother would be making. She would not be arguing breach of contract, so at will wont save them.

Edited March 29, 2012 by Soxbadger

[Tuna]

Soxbadger,

 

After reading several of your posts, I've decided to hire you after I win megamillions tonight. Please be online after the drawing.

 

 

Edited March 30, 2012 by Tuna

[Jenksismyhero]

I agree with what Soxbadger has said - meet with an attorney and explain the entire situation. Getting little snippets on the internet helps, but isn't a full evaluation of her potential claim.

 

From what you said it sounds very suspicious. Normally an HR person would wait until the person is back from leave at regular duty before firing them, to lessen the chance of an FMLA/age discrimination claim. Here they did it while she was on limited duty. Might be innocent, but the timing does seem strange.

 

These cases are tough for a Plaintiff. You basically have to prove a "read between the lines" situation. Most don't go to trial though. You do discovery, take some depositions, and if you can defeat a summary judgment motion brought by the employer, usually the case settles during a pre-trial. Not saying that's the particular route this will go, but that's sort of what to expect.

 

If I were you i'd talk to someone. There are a gazillion lawyers out there that will spend time with you to go over everything and make a full evaluation of her options/chances.

Edited March 30, 2012 by Jenksismybitch

[NorthSideSox72]

Which is an at will state.

As I understand it, there are only a couple or three states that are not purely at-will. CA and MT, I think, are the exceptions.

 

[clyons]

Tex,

 

I was on vacation last week and wasn't checking Soxtalk, but I have practiced labor and employment law in Illinois for over 20 years. Almost all my experience is on the management side, but that can come in very handy when advising individuals. I'll shoot you a PM with my contact info.

 

PSFJ

Edited April 3, 2012 by PlaySumFnJurny

[Texsox]

Well she decided to just sign the papers. They are throwing her a "retirement party" which she will attend and because of the agreement she signed, she can't say she was terminated.

 

For a s***ty three weeks severance.

[clyons]

Well she decided to just sign the papers. They are throwing her a "retirement party" which she will attend and because of the agreement she signed, she can't say she was terminated.

 

For a s***ty three weeks severance.

 

For what it may be worth, she still has seven days to revoke her acceptance, if she reconsiders. The release must provide that right by its terms, or otherwise it is legally unenforceable as to a federal age claim. That's also the reason the agreement advised her to speak with an attorney (not because, as you wrote she had indicated, everything was "legal"). Those are special requirements unique to waivers of rights under the Age Discrimination in Employment Act.

 

 

[greg775]

Well she decided to just sign the papers. They are throwing her a "retirement party" which she will attend and because of the agreement she signed, she can't say she was terminated.

 

For a s***ty three weeks severance.

 

Geezus this thread depresses me.

America ... what a country.

Businesses can kiss my ass.

 

The only good thing about this thread was all the helpful people in here. Makes me feel good about the attorneys/students on Soxtalk.

Edited April 20, 2012 by greg775

[2nd_city_saint787]

Maybe not the right thread but does anyone know of a legit free background check online....I'm trying to get my perc card but Im pretty sure I have a silly guilty by association felony on my record.....Only reason im not 100% is because I got a security job in IL before and the guy conducting the interview, whos a police chief in chicago, kept asking his assistant about the results of the background check...so either I dont have a felony, felonies that occur in IN dont count in IL, or he was bluffing about running a background check.

 

6 years ago I was the driver of a vehicle in which the guy in the backseat shot a kid with a very low powered BB gun and from what I remember somehow I got hit with an Assisting a Criminal and Battery charge....where as the guy who actually shot the kid apparently didnt get squat because hes in the military now

[Dick Allen]

Well she decided to just sign the papers. They are throwing her a "retirement party" which she will attend and because of the agreement she signed, she can't say she was terminated.

 

For a s***ty three weeks severance.

Its beyond suspicious what happened here. I personally think its age discrimination. What company only gives 3 weeks for 20 years service? The company I work for gives a month per year of service. The goal is to get laid off 2 years before I want to retire.

[Texsox]

Maybe not the right thread but does anyone know of a legit free background check online....I'm trying to get my perc card but Im pretty sure I have a silly guilty by association felony on my record.....Only reason im not 100% is because I got a security job in IL before and the guy conducting the interview, whos a police chief in chicago, kept asking his assistant about the results of the background check...so either I dont have a felony, felonies that occur in IN dont count in IL, or he was bluffing about running a background check.

 

6 years ago I was the driver of a vehicle in which the guy in the backseat shot a kid with a very low powered BB gun and from what I remember somehow I got hit with an Assisting a Criminal and Battery charge....where as the guy who actually shot the kid apparently didnt get squat because hes in the military now

 

Don't go on line, stop by the state's attorney office. They should be able to check. Bring lots of identity proof.

[greg775]

So any updates? How is mom taking the "firing?"

Is she OK or getting mad or happy they are throwing her the party?

[Texsox]

She is enjoying being retired, she was only going to work another year anyway. But still a little upset at how hard she worked to rehab and get back to work. She didn't need to push herself so much.

[greg775]

She is enjoying being retired, she was only going to work another year anyway. But still a little upset at how hard she worked to rehab and get back to work. She didn't need to push herself so much.

 

Yes that's understandable she'd feel that way.

Were they nice to her at the party?

[Texsox]

Yes. Last night the employees threw her a party without the bosses around. I am certain the "retired" story was exposed.