Can someone else's lack of work ethic get you fired?

March 24, 2010 7:25 AM

Another person wondering if they have a wrongful termination case in an at-will state.

In Washington state. Apologies for the length.

Terminated citing attendance and work performance issues after complications with a surgery and depression a few months ago. Kept immediate superior as aware of my health as I felt comfortable (did not feel like going into detail about my depression). For what it's worth, I have been rescheduled several times (due to communication issues between my physician and the psychiatrist) over the past few months while trying to get in regarding undiagnosed/suspected bi-polar disorder and ADD, among other issues. I cannot reiterate enough how my work environment directly affected my mental health.

Sub-question: Concerned about COBRA insurance; heard it was not worth the price. This is a stretch, but I'm concerned about possible hospitalization bills as I only intended to have these evaluations done under the pretense that I had my former employer's insurance. Is it completely out of line for me to believe that because I was employed while this was getting sorted out that I should be entitled to have my former insurance cover it? I know this is probably an easy no, but I'm going to ask anyway.

Feel wrongly accused of the work performance issue as I feel as if I was thrown under the bus to cover the account manager's mistakes (i.e. there were things for me to do but they were not efficiently funneled down to me timely enough for me to get them done by deadline, emails would sit in AM's inbox for days before they would be tended to, despite having worked there for over a year, still had no idea what my position/skillset was and who my accounts were). This was happening daily. In the beginning I was more on the AM's case about it because I knew it had to be overwhelming, but over time grew wary of their ability to do their position at all; previous AM had absolutely no problem with this task.

AM misses a lot of work and leaves sporadically throughout the day, almost every day, and is often on the phone with friends while at their desk. The AM's personal friends and spouse even call the office phone multiple times a day. Think 10+ times a day. This is obviously incredibly discouraging behavior, and it is apparent to the entire office. Things had been said, but nothing was done.

Said AM is in what I (and other co-workers) believe is an intimate or otherwise inappropriate (both are married) relationship with one of the owners.

No physical proof of their relationship outside of the tension in the room, obvious flirting, blatant mannerisms, besides the company cell phone statements that show them texting each other randomly in the middle of the night. Heard about this through a co-worker who was helping the AM figure out how to read the bill.

Feel as if both the AM's attendance and work performance has always been a problem (since the beginning of their employment) and is what ultimately made my position look weak, and if they were not close with the owner, they would have been eliminated long ago.

Had taken to writing down complications the AM and I were having to be brought up during the following review. Quarterly bonuses are given at the quarterly reviews and unknown to me at the time, the company had not made enough money the previous quarter to give bonuses and decided not to have reviews. They decided not to tell anyone this. Only found out through a co-worker's instigating.

Like I said, I know that at-will in a small company basically puts a noose around my neck, so I'm not expecting anything out of this, but feeling a little backstabbed and just want to make sure I don't have any other options available.

Thank you. Throwaway email is here.

posted by anonymous to work & money (11 answers total)

The only person who can answer this question is a qualified employment attorney in your jurisdiction. Anyone else is just speculating.
posted by decathecting at 7:37 AM on March 24, 2010 [1 favorite]

In general and broad strokes everything under the "sub-question" is pretty much meaningless w/r/t a wrongful termination claim. It can be shitty but it really doesn't mean much.

The only way you have a claim is if you were fired because of your medical illness.
posted by bitdamaged at 8:18 AM on March 24, 2010

From a disability rights perspective, attendance policies may need to be modified as a reasonable accommodation to an employee with a disability. This obligation generally depends upon the employee letting the employer know that they need some such modification because of disability. Depression can "count" as a disability, as can surgery, but it all depends upon the facts and what facts were known to the employer.

Also from a disability rights perspective, performance standards need not be lowered for an employee with a disability. But if the reason for the performance issue is an employer's failure to accommodate, then that can be a claim (with lots of factual issues to be proven).

Usually, the failures and foibles of a supervisor, that a manager is a crappy employee, a favorite of the owner, involved with the owner -- usually these are not relevant in an at-will situation unless the supervisor violates an employment law.

The impact of a crappy work environment upon an employee's health and wellness cannot be overstated. However, usually the only remedy is a claim to the workers compensation carrier, and there may be rules that limit any assistance for non-physical injuries.

It looks like you may just qualify for the COBRA premium reduction. Read here.

And, of course, apply for unemployment insurance, and appeal if there's any problem. I have a vague recollection that there is some kind of legal services resource in Washington State for UI appeals, so come back and ask here or ask me if there's any problem with your UI.
posted by ClaudiaCenter at 8:30 AM on March 24, 2010

Another person who needs to talk to a lawyer because they are wondering if they have a wrongful termination case in an at-will state.
posted by OmieWise at 8:58 AM on March 24, 2010

As far as employment at a small company where the boss is behaving inappropriately with a subordinate and it's making life difficult for the competent? Been there, done that, WISH I'd been fired so I could have collected unemployment and missed all the brouhaha as it all went to hell.

I know, other people implying that you're lucky to get fired is no help. I just want you to know that you're not alone in having suffered through this. It happens, it's unpleasant and unprofessional, and you should console yourself as much as possible with the fact that you're lucky to be out of there. It's toxic and if it EVER gets better it'll take a long time. Where I was went from annual turnover of about 1% to 30% as people left to get away from the situation.

As far as COBRA, whether its worth it or not is dependent on your ability to get other insurance. One big reason people pay whatever it costs is to insure they do not exceed 62 days of continuous non-coverage, the standard (till new health care reform limits kick in) for how long before you can be denied for pre-existing conditions. So if you think you might not be employed somewhere else with insurance coverage in the next two months this is how you make sure you don't exceed that time limit.

If you can call up and buy insurance directly at a lower rate - which may be a challenge to get affordably with your issues - then you can opt not to go for the COBRA coverage.
posted by phearlez at 9:00 AM on March 24, 2010

IANYL, but the information provided is insufficient to give a proper analysis of the likelihood of a wrongful termination claim. Even in an at-will state, an employment contract (which can in some states be read into a non-contract looking document, like an employee handbook or printed disciplinary policy) can create contractual obligations. Without knowing what state you are in, what materials exist and what the pattern of conduct of the business was for terminations and discipline, NO ONE can answer this question.

But depending on how sour the legal market is in your locale, there may be someone to take such a case on contingency. Without more information I wouldn't pay someone. Consults are nearly always free, and sound like a potentially good idea.
posted by letahl at 9:34 AM on March 24, 2010

Sorry, I take away the no state thing, but my conclusion is still the same. Good luck.
posted by letahl at 9:35 AM on March 24, 2010

IMHO...any job that makes you want to slit your wrist is not a job I would want to fight over (either to get back or to get compensation from). I have always handled this type of situation by moving on, finding an even better job, and thanking God that I got laid off/fired/let go because it gave me the push to find a better work situation.
posted by MsKim at 9:51 AM on March 24, 2010

Hello everyone, I'm the OP. You may or may not have seen my post about two months ago regarding this exact issue. It has a little more detail as to how things were operating before this went down.

To everyone saying lawyer up, I'm definitely looking into local attorneys, I just wanted to get an idea of what I might be up against, if I even had a case at all.

Claudia: Thank you so much, great stuff! I'll keep looking into this.

phearlz: Yeah this is an awkward situation, and I'm sure it will only get worse, so not having to be a part of it is a relief. I'll continue to look into COBRA and find out what I'm eligible for.

And MsKim, I'm totally with you. I definitely do not want this job back, and even if there's not actually something sketchier going on behind the scenes, the AM's behavior all throughout her employment had been less-than-stellar and directly affected my ability to work.
posted by june made him a gemini at 1:00 PM on March 24, 2010

I don't know anything about whether you have a case or not. However, if you want unemployment, you have to apply for it. I think that with the unemployment insurance that would also allow you to get COBRA. You probably want COBRA because no other insurance is going to want you will all these bi-polar and whatever issues. You really don't want to get into a "break in coverage" situation. So, my advice would be to apply for private insurance while you are applying for unemployment and take the COBRA if it's offered. Everyone's situation will be different on COBRA because it is a continuation of your old insurance -- if your old company had a great program with low premiums then that's what you'll pay.

In Oregon, I think the employment department wants to know that you were let-go without cause and that you had not been given any opportunity to rectify the situation. If you had a medical issue and have any correspondence that shows they were well aware and approved of your situation then submit that as well.

Don't bring up any other private issues that lack documentation or that were happening only in your head. No one will really care about those.

1. File for unemployment. 2. Appeal 3. Get health insurance elsewhere or through COBRA

And while you're doing that, go get another job. If you need health insurance to cover your medical needs then most likely you need a job that provides that.
posted by amanda at 1:33 PM on March 24, 2010

Regarding COBRA -

I've since seen this article which includes some analysis about the immediate upshot of the health care reform vote. It includes this copy&paste from the WH (so the interpretation of the law may be on target or may be optimistic) and these are things likely to impact you:

This year, adults who are uninsured because of pre-existing conditions will have access to affordable insurance through a temporary subsidized high-risk pool.

and

This year, new private plans will be required to provide free preventive care: no co-payments and no deductibles for preventive services. And beginning January 1, 2011, Medicare will do the same.

and you earlier asked: Is it completely out of line for me to believe that because I was employed while this was getting sorted out that I should be entitled to have my former insurance cover it? I know this is probably an easy no, but I'm going to ask anyway.

In answer to that, yes, it's unreasonable. Insurance is focused on pay-for-service and any service you get after that insurance ends is not going to be covered just because it's services prompted by diagnosis that you got while you were covered.

If I were in your shoes I'd get a price on the COBRA and assume you're going to elect for it until you have something else arranged. The last time I had to take advantage of it back in ~2001 I did not have to write the check immediately, meaning that if I'd managed to arrange private insurance I could simply opt not to make that next payment.

Given that you have some issues diagnosed and a plan of action lined up I'd say there's a compelling reason to opt for it at the moment while these other high-risk pools get set up.
posted by phearlez at 9:22 AM on March 25, 2010