Can my employer fire me because I am unable to work due to a motor vechicle accident?

May 18, 2011 6:08 PM

Can my employer fire me because I am unable to work due to a motor vechicle accident?

My attendance and tardiness has never been a problem before and I even have someone to cover my shifts. It's not even a serious job I work as a waiter on the weekends. I missed last weekend because I was in the hospital with a concussion and multiple contusions and this weekend doesn't look good. She said I can look for another job if I don't show up. It's just one more weekend to get over the concussion after effects!

posted by isopropyl to law & government (23 answers total)

Most states in the US are at will employment, without an employment contract, they can fire you for any reason at all (excepting racial and sexual discrimination).
posted by T.D. Strange at 6:13 PM on May 18, 2011

Not a lawyer or HR person, but the first thing that spring to mind is FMLA. I'm not sure if someone who isn't a full time employee is covered under it, but that's where I'd look first, then at your state's labor laws.
posted by Brian Puccio at 6:13 PM on May 18, 2011

To be eligible for FMLA coverage you need to have worked 1250 hours for your employer within the last year, they must employ at least 50 people within a 75-mile radius (last I heard chain restaurant employees are governed by their franchise/ownership situation, so just because it's McDonald's it may not count,) and you have to have been employed for at least a year. Part-timers usually get it because of the 1250 hours rule - that's more than half time (full time is 2080 hours.)
posted by SMPA at 6:23 PM on May 18, 2011

They may not be large enough to fall under FMLA laws, but that doesn't mean that firing you would be without repercussions. A woman in my city was fired from her retail job for missing time to go to chemotherapy and was fired. Then some restaurant owners I know got wind of it, and hey, social media is everywhere. I'm reasonably sure she found another employment offer very quickly as a result and the employer came out looking pretty bad, which should worry any small business owner. So maybe try being a human-interest story in the news, or at the very least spread the word.
posted by kpht at 6:25 PM on May 18, 2011 [2 favorites]

(by "get it" I mean "find themselves ineligible." I need to stop answering questions while watching old X-Files episodes.)
posted by SMPA at 6:25 PM on May 18, 2011

***I've worked 36 hours a weekend consistently and sometimes i'll pick up a weekday shift or two. The books at the restuarant are really screwy, they have illegal immigrants running the kitchen and bussing and none of the service staff has any records on file at the store. we get random 10-20 dollar checks every two weeks but no paystubs that make sense of it all. When I work my weekend shifts I go in at 10:30 am and might get a hour break at 3 and then cleaning or waiting tables till 11:30 sometimes midnight. I was in a car accident the 12th and suffered from a concussion and multiple contussions. I got out of work last week only because I was hospitalized. I despartley need the money and I make great tips here so I don't want my hours cut to nothing due to animosity. The ultimatum I recieved said any request for time off or to be let off early would result in my termination. My primary care doctor referred me for physical therapy and said no work but I CAN'T NOT WORK while I want for my lawyer to get my bills reimbursts. HELP SOMEONE please I can't work tomorrow.

by the way I live in Georgia if anyone can help dicipher the laws with me.
posted by isopropyl at 6:44 PM on May 18, 2011

A woman in my city was fired from her retail job for missing time to go to chemotherapy and was fired.

Um, apologies for this sentence, I'll blame it on being very tired.
posted by kpht at 6:55 PM on May 18, 2011

It looks like you have no rights.

Please join a union in your next job.
posted by pompomtom at 8:49 PM on May 18, 2011 [2 favorites]

The ADA, as amended, covers a broader range of disabilities than previously. You might want to start looking here. Time off for treatment and recovery can be a reasonable accommodation to a disability.
posted by ClaudiaCenter at 9:14 PM on May 18, 2011

You already have a lawyer for the injury claim? Ask him/her if they'd be willing to issue a letter to your employer requesting that your employment not be terminated since you're out on doctor's orders.

The friendly letter from the lawyer is a known thing that lawyers will do as a favor. They'll have a specific way that they'll need to word it, which may sound toothless to you (they can't claim that you have rights that you do not, I think) but the magical power of legal firm letterhead is impressive.
posted by desuetude at 10:19 PM on May 18, 2011

If they do shitcan you, you can always get your revenge by reporting them to the INS and whatever gubmint agency is responsible for handling the fact that they don't have all their other employee documentation either.

Of course, that depends on how revengey you want to get. Sounds like that place is full of dillweeds anyway.
posted by Heretical at 10:26 PM on May 18, 2011

Please join a union in your next job.

Given that less than 15% of the U.S. workforce is unionized now, this is harder and harder to do.

Of course, this is precisely why the ruling class has been busting unions for decades now.
posted by scody at 10:28 PM on May 18, 2011 [9 favorites]

I'm afraid you're hosed.
As far as FMLA goes, employers (especially employers in the service sector, like restaurants) have become well-schooled in how to juggle their staffing and hours in order to work everyone right up to the edge of triggering the provisions. It's part of upper-management training.

Please join a union in your next job.
Riiiight. As if unions exist in any meaningful way, anymore, outside of large-scale manufacturing. Hell, even the skilled-trades are overwhelmingly non-union now.
posted by Thorzdad at 6:04 AM on May 19, 2011

as others have said, you're probably SOL. So go find a job at a reputable establishment. And right after you do that give a call to ICE and inform them of the illegal immigrants working in the kitchen :). It sucks for them but this employer is probably treating them way worse than they are treating you.

if their books are clean then they have nothing to hide :)
posted by zombieApoc at 6:15 AM on May 19, 2011

Please join a union in your next job.

Here in GA anti-union sentiment runs very strong even among those who would benefit greatly from collective bargaining. It is not a practical option for most people here. Although employee rights are limited in this state and the F&B business tends to ignore even the few rights employees have, the suggestion above to mention this to the lawyer handling your injury claim (if you have one) is good. Also, your doctor should be willing to call and/or write a letter to your boss telling them you can't work for medical reasons. Management types who routinely browbeat subordinates often become more accommodating when presented with a polite request from a person in a position of some authority, such as a physician or lawyer.
posted by TedW at 6:18 AM on May 19, 2011 [2 favorites]

Georgia law isn't likely to help. The FMLA would provide protection, if your employer has at least 50 employees within 75 miles of your worksite, and you've worked at least 12 months for the employer, and you've worked at least 1,250 hours in the last 12 months.

If the FMLA isn't an option, you're left with the ADA. As ClaudiaCenter indicates, allowing a "reasonable time to heal" has been viewed as a "reasonable accommodation" an employer must make to a disabled employee. The real question is whether you have a disability -- do you have an impairment that substantially limits one or more major life activities. The more temporary and less severe the impairment, the less likely it is to be a disability. But if you do have a disability (or arguably have a disability) under the ADA, your employer would risk violating the law by firing you for missing work due to the disability.

No one here on MetaFilter -- including me -- can definitively answer these questions for you or provide legal advise. You'll have to consult and retain a lawyer or contact the EEOC.
posted by pardonyou? at 8:45 AM on May 19, 2011

(advise, advice. whatever)
posted by pardonyou? at 8:46 AM on May 19, 2011

If they do shitcan you, you can always get your revenge by reporting them to the INS and whatever gubmint agency is responsible for handling the fact that they don't have all their other employee documentation either.

Please don't get innocent people deported. If they had any options other than working for your shitty boss, I'm sure they would take them.
posted by desjardins at 9:12 AM on May 19, 2011 [4 favorites]

I wouldn't bother with ICE or INS - I would bother with calling the GA Dept of Labor and the IRS. If you can't track what this woman should be paying you and if she isn't paying you on a regular schedule, she's probably breaking a law or two.
The IRS also pays whistle blower awards.
posted by jaimystery at 9:39 AM on May 19, 2011

This is a terrible situation to be in and I am so sorry to hear that your employer is causing you so much stress at a time when you should be fully focused on recovering your health. I know you say you need the money -- I imagine you feel like you especially need money after the pay you have already lost and the medical expenses you have no doubt suffered related to this accident -- but please do not let this employer push you into doing anything that would harm your health long-term.

Do you have a letter from your doctor saying you can't work? If you do, have you sent it to your employer? If you don't, could you get one written up that says, specifically, when you will be cleared to work again? Maybe your boss is afraid you will not be able to work long-term, and thinks it would be better to replace you sooner than later.

Also, it seems to me that if your employer is not keeping regular records and is generally running a slipshod operation, she might not actually know what the applicable labor laws are. This could work in your favor. It would be great, I think, to get a polite, vaguely threatening letter from your lawyer as others have suggested. However, if that turns out not to be possible, it might work to say, over the phone, something like, "You know how much I appreciate this job and how much I would like to be there this weekend, but my doctors have advised me to use the medical leave I am entitled to under FMLA as someone who works more than 30 hours a week. I would hate to have to involve my lawyer from [LAW FIRM HERE] in a formal medical leave request. That could end up making a lot paperwork for you." You know, basically imply LAWSUIT LAWSUIT LAWSUIT without actually saying it.

Frankly, though, your employer sounds like an extremely selfish person who treats her employees like wage slaves. If there's any way you can stand the loss of income, it might be better for your long term mental health to leave in a blaze of glory (and hopefully take a chunk of her reputation out with you by making it generally known in your community that she fired you, an exemplary employee, just because you were seriously injured and needed two weekends off of work).
posted by BlueJae at 10:44 AM on May 19, 2011

the FLMA is not the only area here -- the ADA (the amended one especially) would probably be helpful, at least in the short term. The analysis though is far too complicated to do here. Put your lawyer on it.
posted by wurly at 10:47 AM on May 19, 2011

desuetude: " The friendly letter from the lawyer is a known thing that lawyers will do as a favor. They'll have a specific way that they'll need to word it, which may sound toothless to you (they can't claim that you have rights that you do not, I think) but the magical power of legal firm letterhead is impressive."

While this may work, it might make them be so shitty towards you that you don't want to work there anymore, too.
posted by IndigoRain at 8:50 PM on May 19, 2011

Riiiight. As if unions exist in any meaningful way, anymore, outside of large-scale manufacturing.

And you whinging is going to change something?

This is my union. Nothing about manufacturing. Is this another 'American Exceptionalism' thing, or have you just given up? Either answer is pathetic.
posted by pompomtom at 8:01 AM on May 20, 2011