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Nephs13
member
NBR: Should she sue for wrongful termination?
Nephs13
member
(I'll start this by saying I'm in no way a legal expert, but this story has really gotten to me so I thought I'd get some opinions on here in case any of you have some insight.)
A friend of a friend just returned to work after taking a 6-month maternity leave. Prior to going on leave, this girl was considered a top performer. Upon returning, she was told that she is now at the lowest possible ranking and is being forced to resign or be terminated. If she resigns, they are offering her one month of pay. If she is terminated, she will get nothing. She was told this all within the first month of her return, so it's not like she exactly had a lot of time to royally screw up to merit such a low ranking.
I think she is trying to get a hold of any documentation to prove that she was in fact considered a top performer prior to her leave, but even if she can't get that, I wonder does it matter? The company she works for is HUGE, as in one of the biggest oil & gas companies in the world, so whatever settlement she could seek if she sues would probably be a drop in the hat for them, but this poor girl is a single mother who most likely can't afford to be tied up forever in legal fees.
I'm sorry I don't know more about the details, but based on what I've heard, my heart breaks for her and I feel this is so unfair, plus illegal! Based on my very limited information, do you think she should sue the company or just resign and look for another job? I don't have any close lawyer-friends IRL, so I'd appreciate any knowledge or opinions from the moms on this board. Plus I just had to vent because the whole thing makes me sick and I thought you all might feel the same. TIA!
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Re: NBR: Should she sue for wrongful termination?
http://balletandbabies.blogspot.com
This is TX exactly. I notice you're in Houston, if your friend is too then it would probably be pointless. She would be eligible for unemployment though, so that's at least something. And hopefully she'll get a package. But like pp said, unless it is some kind of discrimination with tons of evidence, it would probably be a waste of time and money.
It feels like discrimination to me, since she had top ranking prior to leaving on approved maternity leave, only to return to be at the bottom and forced to resign or be terminated. Does that not qualify as discrimination to you? (Not being rude, just curious to what you think...)
I am a lawyer. I think she does have a case for discrimination and wrongful termination. Most plaintiffs' employment lawyers won't require an hourly rate (their rates are contingency--they get 33% or so of the recorvery plus costs). If I were her, I would find a reputable plaintiffs' employment firm (larger than a 1-2 attorney shop) this week!
She should not resign because she won't get unemployment.
Alternatively, she should negotiate at least 6 months severance (standard for large companies) for a release, plus an agreement in writing to provide stellar recommendations.
FMLA provides job protection for 12 weeks, however if they agreed to let her take longer then they cannot now use that against her for performance purposes. I think she should sue, I know I would. A company that big will likely throw money at her just to make her go away.
In regard to unemployment, many states view a forced resignation as a "constructive discharge" so it would still be possible to collect... I've seen it here in Florida many times but not sure about Texas. That said, I would make them fire me. I would not make it easy on them to get rid of me under those crappy circumstances.
I agree she should consult with an attorney and shouldn't resign or do "anything" really until talking to an attorney.
BUT that said she's probably getting her hopes up thinking she has a great case for discrimination and/or wrongful termination absent more information that we are not getting here, like an employment contract or something else.
Good luck to her either way!
Here's a nice article that explains in simple terms what a wrongful termination suit is.
https://www.austinchronicle.com/columns/2005-05-06/269707/
http://balletandbabies.blogspot.com
I also live in an at-will employment state (CA). I am not trying to get her hopes high. None of us know all the facts.
However, I don't think she needs an employment contract to have a case. Most wrongful termination/discrimination cases don't involve plaintiffs who had employment contracts.
In some states, pregnancy is considered a disability. Moreover, since pregnancy is unique to women only, there is a possible discrimination argument and wrongful termination argument.
If it was me, I would talk to a plaintiffs' employment lawyer in her area and get their advice immediately.
No, nothing about it is discriminatory. She USED to be a top performer. After 6 months of not working, she is no longer amongst their top ranking.
FMLA only protects one's job (and status) for 12 weeks. It's been much longer than that. And as others stated, most states are at-will states, meaning employers can let people go at any time for any reason UNLESS they are protected by FMLA, which your friend no longer is.
You said that they're trying to force her to quit or resign, but in what way? Have they said that if she doesnt quit, she'll be fired anyway? If so, then let them fire her. Then she can collect unemployment. Otherwise, her best bet is to just keep working and become one of their top performers again. Starting over at the bottom may not seem right, or fair, or nice, but it's perfectly legal and not very surprising, especially since she is in a performance-based job. That's what happens when you aren't working: you aren't performing and it's silly to assume you would retain your rank during an absence.
I'm really curious- on what grounds is the potential termination discriminatory or wrongful in an at will state for someone who is not being covered under FMLA?
It wasnt quite clear (to me anyway) if those really were the only options- quitting or being fired. But even if they are, then I'm still not sure how that would be illegal. She is not protected under FMLA and she's in an at will state. Fair or unfair (and I"m not saying its fair), it doesnt sound like the company NEEDS a reason to let her go or that they're under any sort of obligation to keep her on.
This is my thought: She took a 6 month maternity leave. If they didnt want her to take that long and were going to "punish" her for doing it, then why would they have approved it in the first place. Why wait for 6 months to give her the option to quit or be let go if they knew she was going to take that long? If they didnt approve the leave and she took it anyway, then she clearly doesnt have leg to stand on.
I just dont see (as a layman, obviously) why what they're doing isnt legal? Again, it sucks the big one, but that doesnt make it illegal.
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I am an employment attorney. You haven't provided enough facts for me to conclude whether she has a case or not. You haven't explained why she is no longer considered a "top performer" and how she knows this. If she were to sue for discrimination and wrongful termination, she would need to prove that her eventual termination was related her her pregnancy/maternity leave. She may be able to do this, but I cannot tell from the facts that you've given us. As for the FMLA issue, that is irrelevant unless her leave was not approved by her employer. In other words, FMLA leave is only 12 weeks, but even though she took 6 months, her employer cannot fire her for that reason if they had previously approved the leave. If, however, the leave was not approved, they certainly have grounds to fire her.
I agree with wedsept. Your friend should consult with a reputable employment attorney if she really thinks she has a case, and she certainly should not resign because she will not be able to collect unemployment. Alternatively, she can threaten her employer with a lawsuit, and ask for a severance package in exchange for signing a release of her rights to sue them. I wouldn't recommend this, though, if she really thinks she has grounds to sue them.