There's a bullet out there for everybody, I just hadn't caught mine yet.
December 30, 2009 8:18 PM Subscribe
YANAL, but do I have a wrongful firing case? Very long, so apologies and many thanks.
Six months ago, I started working for a small web development shop. Determined not to find myself in a bait and switch situation, as I have several times before, I did more than my fair share of due diligence. I asked good questions in all the interviews and I was upfront about my own strengths and weaknesses. I was also very upfront about my wife's pregnancy and about needing time in the near future for that. I was told "no problem" on all that. In short, by the time all was said and done I felt very well qualified for the work I was going to be doing, and aware of who I was doing it for.
Three months in, the lead developer was fired for completely absurd (read: made up) reasons; literally on the same day we were told that, a) our current project manager (who hired me and with whom I got on famously) was leaving, b) he would be replaced by some sales guy, and c) we would no longer sell services but would instead transition into selling some kind of software "product" in a niche market. That was sort of the tremor of the forthcoming earthquake.
Over the ensuing months it became obvious that salestard couldn't manage projects for shit; he would put jobs into the queue with partial or no background information. He would drop major changes in scope, design or direction on you at the last possible minute and front load management's expectations by telling both us and them that it "shouldn't be a big deal." With nowhere to move in terms of deadline, things would just get later and later. Pretty soon, every project he had was in the red and was weeks behind. His mismanagement affected me worst of all, as my two largest projects were also high dollar ones. And this is pretty important: one was to be a prototype (*not* a finished product), and the other was given to me as a "redesign", only to be revealed later as a complete porting of a site from one version of a CMS to another. The first project turned out to involve a nightmare client, who nightly tinkered and made modifications to critical pieces of their data feeds (the ones our app relied on) so that our test environments would often be broken for three or four hours at a time. The second project finally went thirty hours over, as I was slowly "one more thinged" to death; see, it's hard to port an application when you can't see and have no specifications for what you're porting it from. There was no documentation, no spec, nothing; I was literally expected--in a 30 hour bid, no less--to audit and port an entire web app, sight unseen.
This brings us to now. Three days before Christmas I arrived early at the office, only to be taken aside by some other devs and told to prepare for a firing. Sure enough, an hour later, I was. The official reason was "performance" because these two projects had gone over their time. In the case of the prototyping project, I was given the reason that much of it had to be "rewritten", which just showed my lack of expertise. In reality, I was just doing what I had been asked to do: build a rough yet functional prototype. In fact, I had done better than that. What I built was totally launch worthy. It bears mentioning that this same project was now on its third developer since me, a tactic which hadn't made any dent in its progress. (I loved to mention to the replacement project manager that he should read "The Mythical Man Month", but he never did and it showed. He loved to pull people off of work just as they hit their stride and then sit there dumbfounded as their successor took whole days to get acquainted.) In their view, I was owed no severance and they opted out of allowing me unemployment benefits. That was fair, in their estimation, since they had "given me so much time off" for my child's birth. I took a total of six days off. This company was too small to be bound to offer FMLA, so I took those days out of pocket and worked off all but nine hours.
About a week before my firing, the new project manager "stepped down to take another role". In other words, our ex-military CEO was enraged about everything on his project board being late, and tired of complaints from customers, so PM was told to either quit, take a demotion, or get fired. After he took the second option there was still a bullet flying around the office, and I caught it.
I've been told by some that I have a case--that I was fired on trumped-up charges (which I'd seen them do before) and that I should have been entitled to unemployment. All I'd want were I to take it to the state employment commission is the right to receive same. Think I have a case? I'm glad I don't work there anymore, as it was totally toxic; but firing a guy with a 10 week old baby, three days before Christmas? That's beyond the pale, unless he was a danger or was sexually harassing people. Even if I were grossly under-qualified (whichI certainly am not), what's three more days not to be remembered as a dick?
Six months ago, I started working for a small web development shop. Determined not to find myself in a bait and switch situation, as I have several times before, I did more than my fair share of due diligence. I asked good questions in all the interviews and I was upfront about my own strengths and weaknesses. I was also very upfront about my wife's pregnancy and about needing time in the near future for that. I was told "no problem" on all that. In short, by the time all was said and done I felt very well qualified for the work I was going to be doing, and aware of who I was doing it for.
Three months in, the lead developer was fired for completely absurd (read: made up) reasons; literally on the same day we were told that, a) our current project manager (who hired me and with whom I got on famously) was leaving, b) he would be replaced by some sales guy, and c) we would no longer sell services but would instead transition into selling some kind of software "product" in a niche market. That was sort of the tremor of the forthcoming earthquake.
Over the ensuing months it became obvious that salestard couldn't manage projects for shit; he would put jobs into the queue with partial or no background information. He would drop major changes in scope, design or direction on you at the last possible minute and front load management's expectations by telling both us and them that it "shouldn't be a big deal." With nowhere to move in terms of deadline, things would just get later and later. Pretty soon, every project he had was in the red and was weeks behind. His mismanagement affected me worst of all, as my two largest projects were also high dollar ones. And this is pretty important: one was to be a prototype (*not* a finished product), and the other was given to me as a "redesign", only to be revealed later as a complete porting of a site from one version of a CMS to another. The first project turned out to involve a nightmare client, who nightly tinkered and made modifications to critical pieces of their data feeds (the ones our app relied on) so that our test environments would often be broken for three or four hours at a time. The second project finally went thirty hours over, as I was slowly "one more thinged" to death; see, it's hard to port an application when you can't see and have no specifications for what you're porting it from. There was no documentation, no spec, nothing; I was literally expected--in a 30 hour bid, no less--to audit and port an entire web app, sight unseen.
This brings us to now. Three days before Christmas I arrived early at the office, only to be taken aside by some other devs and told to prepare for a firing. Sure enough, an hour later, I was. The official reason was "performance" because these two projects had gone over their time. In the case of the prototyping project, I was given the reason that much of it had to be "rewritten", which just showed my lack of expertise. In reality, I was just doing what I had been asked to do: build a rough yet functional prototype. In fact, I had done better than that. What I built was totally launch worthy. It bears mentioning that this same project was now on its third developer since me, a tactic which hadn't made any dent in its progress. (I loved to mention to the replacement project manager that he should read "The Mythical Man Month", but he never did and it showed. He loved to pull people off of work just as they hit their stride and then sit there dumbfounded as their successor took whole days to get acquainted.) In their view, I was owed no severance and they opted out of allowing me unemployment benefits. That was fair, in their estimation, since they had "given me so much time off" for my child's birth. I took a total of six days off. This company was too small to be bound to offer FMLA, so I took those days out of pocket and worked off all but nine hours.
About a week before my firing, the new project manager "stepped down to take another role". In other words, our ex-military CEO was enraged about everything on his project board being late, and tired of complaints from customers, so PM was told to either quit, take a demotion, or get fired. After he took the second option there was still a bullet flying around the office, and I caught it.
I've been told by some that I have a case--that I was fired on trumped-up charges (which I'd seen them do before) and that I should have been entitled to unemployment. All I'd want were I to take it to the state employment commission is the right to receive same. Think I have a case? I'm glad I don't work there anymore, as it was totally toxic; but firing a guy with a 10 week old baby, three days before Christmas? That's beyond the pale, unless he was a danger or was sexually harassing people. Even if I were grossly under-qualified (whichI certainly am not), what's three more days not to be remembered as a dick?
What state are you in? If it's an employment-at-will state, then unless it's blatant discrimination, wrongful termination is pretty much next to impossible to prove. In an ideal world, you would receive unemployment, but you weren't laid off, you were fired for performance related reasons, and that's a pretty subjective thing. Frankly, it sounds like a horrible company and you got screwed, but I don't know that you'd have much recourse. I hope I'm wrong, and of course, I am not a lawyer, have only basic knowledge of unemployment regulations, and a lot depends on the state in which you are employed. Best of luck!
posted by katemcd at 8:30 PM on December 30, 2009
posted by katemcd at 8:30 PM on December 30, 2009
You weren't fired for being in a protected class. Generally speaking (since, naturally, you've declined to say which jurisdiction you're in), employers are allowed to have completely unrealistic expectations about performance and to fire people on the basis of those expectations.
posted by 0xFCAF at 8:32 PM on December 30, 2009
posted by 0xFCAF at 8:32 PM on December 30, 2009
Awful behavior, I'm sorry. The answer as to whether and what kind of case you might have is going to mostly depend on the state you live in. However, I'm very surprised that they're contesting unemployment -- even though I don't know the state you're in, most unemployment compensation rules typically provide benefits unless the termination is based upon some sort of misconduct, which is usually something more than the alleged poor performance you've outlined. I'd recommend that you see an employment attorney. The attorney can help outline what your claims might be.
But, even if you don't see an attorney, there isn't any downside whatsoever to applying for unemployment benefits (and appealing any initial denial, if you are denied -- that's usually a very basic process). My guess is that, given your description, you are entitled to unemployment benefits. Regardless, you should apply ASAP. Additionally, if you want to help your chances of success, look up your state's labor law department and read the unemployment rules, they'll let you know how you should frame your application and any administrative appeal.
Now, there may be other claims, for example, wage and hour claims (were you paid overtime? if not, were you paid on a salary basis + otherwise exempt from overtime). But you'd really need to talk to an employment law attorney to find out about those, and IANYELA.
posted by seventyfour at 8:33 PM on December 30, 2009 [2 favorites]
But, even if you don't see an attorney, there isn't any downside whatsoever to applying for unemployment benefits (and appealing any initial denial, if you are denied -- that's usually a very basic process). My guess is that, given your description, you are entitled to unemployment benefits. Regardless, you should apply ASAP. Additionally, if you want to help your chances of success, look up your state's labor law department and read the unemployment rules, they'll let you know how you should frame your application and any administrative appeal.
Now, there may be other claims, for example, wage and hour claims (were you paid overtime? if not, were you paid on a salary basis + otherwise exempt from overtime). But you'd really need to talk to an employment law attorney to find out about those, and IANYELA.
posted by seventyfour at 8:33 PM on December 30, 2009 [2 favorites]
The others have it: there's nothing here that would convince an employment attorney to take your case.
In my experience, though, no employer can "opt out" of providing you with unemployment insurance. You can file for it; the employer might challenge it, but there's really no grounds here for you to not receive unemployment benefits.
Good luck finding a new position!
posted by LOLAttorney2009 at 8:35 PM on December 30, 2009
In my experience, though, no employer can "opt out" of providing you with unemployment insurance. You can file for it; the employer might challenge it, but there's really no grounds here for you to not receive unemployment benefits.
Good luck finding a new position!
posted by LOLAttorney2009 at 8:35 PM on December 30, 2009
I'm the opposite of an expert on this, but I think you qualify for unemployment in this situation.
"Fired for cause" up to the State's definition is actually pretty severe, not just having some projects slip.
posted by tad at 8:50 PM on December 30, 2009
"Fired for cause" up to the State's definition is actually pretty severe, not just having some projects slip.
posted by tad at 8:50 PM on December 30, 2009
I was once in a similar position re: being eligible for unemployment in Michigan.
I applied for unemployment, company object, I had to write a 1 page argument. I got the unemployment.
posted by pseudonick at 8:53 PM on December 30, 2009 [5 favorites]
I applied for unemployment, company object, I had to write a 1 page argument. I got the unemployment.
posted by pseudonick at 8:53 PM on December 30, 2009 [5 favorites]
Your employment can be terminated at will, depending on the state, and depending on whether there are employment policies. If you fired for cause, you can't collect unemployment. It's probably worth your while to contest the firing for cause. Try to get documentation of your good reviews, the expectations, your attempts to meet your employer's requests. IANAL
posted by theora55 at 9:03 PM on December 30, 2009
posted by theora55 at 9:03 PM on December 30, 2009
go for the unemployment, chase it to the top of appeals if you have to, and be glad you're out of that clusterfuck of a company. enjoy your baby!
maybe for future's sake you can extend your due diligence in working for startups by hammering out an employment agreement on top of everything else, so that you can protect yourself from these flying bullets. many of us have worked for these kinds of small and startup companies where there is more power than current value at the top, and i think it's certainly a smart move to acknowledge this in interviews. "i know you guys don't seem like this, but i've seen x, y, and z happen at other companies and i'd just like to have some security in knowing that we're all committed to being on the same page." or some such. if they balk, then you know to at least ask for more money to compensate for the lack of apparent security. ;)
posted by rhizome at 9:08 PM on December 30, 2009
maybe for future's sake you can extend your due diligence in working for startups by hammering out an employment agreement on top of everything else, so that you can protect yourself from these flying bullets. many of us have worked for these kinds of small and startup companies where there is more power than current value at the top, and i think it's certainly a smart move to acknowledge this in interviews. "i know you guys don't seem like this, but i've seen x, y, and z happen at other companies and i'd just like to have some security in knowing that we're all committed to being on the same page." or some such. if they balk, then you know to at least ask for more money to compensate for the lack of apparent security. ;)
posted by rhizome at 9:08 PM on December 30, 2009
and really, aren't all firings for "performance?" they likely put it that way to make you think you were being fired for cause, perhaps consciously putting it that way so that you don't even attempt to file for unemployment, but that doesn't mean the state agrees that it is a valid firing-for-cause reason. project slippage is always a management failure, remember that.
posted by rhizome at 9:12 PM on December 30, 2009 [2 favorites]
posted by rhizome at 9:12 PM on December 30, 2009 [2 favorites]
Hi.
I'm an employment lawyer. I strongly suggest you go and visit an employment lawyer in your jurisdiction. He or she will need documents from your work. You need to disregard the advice here, because only a decently-lengthy consultation from a practicing attorney is going to give you any sort of idea.
If you are in Md/DC/VA I can get you a referral. Otherwise go to the website of the National Employment Lawyers Association (NELA) to obtain a referral.
Best of luck
posted by Ironmouth at 10:03 PM on December 30, 2009 [5 favorites]
I'm an employment lawyer. I strongly suggest you go and visit an employment lawyer in your jurisdiction. He or she will need documents from your work. You need to disregard the advice here, because only a decently-lengthy consultation from a practicing attorney is going to give you any sort of idea.
If you are in Md/DC/VA I can get you a referral. Otherwise go to the website of the National Employment Lawyers Association (NELA) to obtain a referral.
Best of luck
posted by Ironmouth at 10:03 PM on December 30, 2009 [5 favorites]
None of the advice here necessarily applies at all in any way. The problem is that none of us know what state you're in; employment laws surrounding this sort of thing vary quite significantly on this point. Some states will allow an employer to fire an employee for nearly any reason whatsoever; other states require lengthy documentation of the firing and penalize the company for letting employees go for no reason or for reasons which were not the employee's fault.
Talk to a lawyer.
posted by koeselitz at 1:54 AM on December 31, 2009
Talk to a lawyer.
posted by koeselitz at 1:54 AM on December 31, 2009
Yes, please talk to a lawyer in your jurisdiction specializing in employment law. If you have to pay for the consultation it will be money well spent.
There are so many misconceptions about what "at-will" employment means, and so much variation between jurisdictions, that I would frankly suggest you disregard any of the advice above that isn't "talk to a lawyer."
You will do yourself a disservice if you seek advice from someone who does not have all the facts, and a firm grasp of the relevant law to which they should be applied. You will not get that over the internet. Talk to a lawyer.
posted by AV at 7:06 AM on December 31, 2009
There are so many misconceptions about what "at-will" employment means, and so much variation between jurisdictions, that I would frankly suggest you disregard any of the advice above that isn't "talk to a lawyer."
You will do yourself a disservice if you seek advice from someone who does not have all the facts, and a firm grasp of the relevant law to which they should be applied. You will not get that over the internet. Talk to a lawyer.
posted by AV at 7:06 AM on December 31, 2009
Speaking to a lawyer will definitely get you some good advice, but at the same time it's my opinion that going down to the unemployment office and asking some questions there would be a reasonable (and free) good start. This doesn't really sound like a legal rocket-science type of situation to me.
posted by Menthol at 7:45 AM on December 31, 2009
posted by Menthol at 7:45 AM on December 31, 2009
Agreed that you should speak to a lawyer. But even if you don't (and I have to accept that there's a chance that you won't), please file for unemployment. This advice applies to you. There's no downside to this as long as you're honest in the application*. You don't need a lawyer to file for unemployment and go through the administrative process (although paying for an hour of time with a lawyer could help you organize your thoughts re: the unemployment claim along with the lawyer's review of the circumstances of the termination).
Do not miss the timeframe for applying for unemployment because you are trying to find an attorney who will do a consult for you. (I am an employment lawyer, but am not your lawyer).
* OK, there's potentially one downside -- statements made in your application and any resultant appeals might be brought up by the other side if you ever do have a lawsuit against your former employer. So if you make a statement that contradicts your later claims, you'll potentially hurt those claims. So go see a lawyer. But if you don't, file anyway.
posted by seventyfour at 8:38 AM on December 31, 2009
Do not miss the timeframe for applying for unemployment because you are trying to find an attorney who will do a consult for you. (I am an employment lawyer, but am not your lawyer).
* OK, there's potentially one downside -- statements made in your application and any resultant appeals might be brought up by the other side if you ever do have a lawsuit against your former employer. So if you make a statement that contradicts your later claims, you'll potentially hurt those claims. So go see a lawyer. But if you don't, file anyway.
posted by seventyfour at 8:38 AM on December 31, 2009
Even if you think they will try to fight it with a charge of misconduct over and above poor performance, still file and go through the process your state provides to contest their contest. I once had an employer pull something similar, and won the appeal process. I strongly suspect that someone in upper management told someone in HR to contest my unemployment, a someone who disagreed with both the initial firing and the afterwords-screwing-attempt, and who thusly made a few 'mistakes' filing their response. Or maybe the state system was messed up. All I know is the letter I got saying I was going to get to get benefits had my former employer's name listed as "Misconduct, Inc.", so who knows what ended up in the field they were supposed to fill with my termination reason.
posted by No1UKnow at 9:27 AM on December 31, 2009
posted by No1UKnow at 9:27 AM on December 31, 2009
IANAL.
You were an At-will employee. You can be fired for anything that is not directly discriminatory. Proving that they fired you for trumped up charges is hard than moving a mountain with a teaspoon. You could check to see if there is anyway to can get benefits. It is doubtful but I would do it anyways. You never know. Lastly that job sounds like a hellhole. Perhaps getting out of there is for the best. For your next job I would tell them that you left due to downsizing.
posted by Mastercheddaar at 10:50 AM on December 31, 2009
You were an At-will employee. You can be fired for anything that is not directly discriminatory. Proving that they fired you for trumped up charges is hard than moving a mountain with a teaspoon. You could check to see if there is anyway to can get benefits. It is doubtful but I would do it anyways. You never know. Lastly that job sounds like a hellhole. Perhaps getting out of there is for the best. For your next job I would tell them that you left due to downsizing.
posted by Mastercheddaar at 10:50 AM on December 31, 2009
Mastercheddaar: “You were an At-will employee. You can be fired for anything that is not directly discriminatory.”
It cannot be overemphasized: this is only true in certain states, and even some localities override state law on this point. Some states are referred to as "at-will" states - that is, they have this rule about being able to employ and fire employees at will - and other states are not.
Again: talk to a lawyer, or at least do research about whether your state is or is not an at-will state. Advice like this is good, provided you are in an at-will state, but we can't know that you are; and if you aren't, it might be that you should fight this legally.
posted by koeselitz at 12:01 PM on December 31, 2009
It cannot be overemphasized: this is only true in certain states, and even some localities override state law on this point. Some states are referred to as "at-will" states - that is, they have this rule about being able to employ and fire employees at will - and other states are not.
Again: talk to a lawyer, or at least do research about whether your state is or is not an at-will state. Advice like this is good, provided you are in an at-will state, but we can't know that you are; and if you aren't, it might be that you should fight this legally.
posted by koeselitz at 12:01 PM on December 31, 2009
this is only true in certain states
At-will employment rules have been adopted by all states for more than a hundred years. The question is whether or not you have a valid exception to the rule.
do I have a wrongful firing case?
Depends on the violation and where you live, as everyone has said. If it were a statutory cause you'd be all set for a lawsuit (say, one that violated federal anti-discrimination statutes like the ones that protect against firing because of race/gender/religion/age/health). That doesn't sound like the issue here, though.
Some states will give an exception if the company fires you for a reason that violates it's own policy. If you live in one of those states, I'd start reading through the employee handbook. Good luck with that.
In some other states (notably fewer) firings have to conform to the wonderfully-vague "just cause" standard, which undoubtedly varies dramatically from jurisdiction to jurisdiction. If you live in one of those states, it couldn't hurt to give a lawyer a call.
If you don't fall into one of those umbrellas, I suppose you could always pitch your own legal battle from the hilltops if you've got lots of money and time, but I know I'd personally rather just let it go. Please note that this has absolutely nothing at all to do with collecting unemployment. If they want you gone, that's one thing. If they want to try and stop you from keeping food in your kid's mouth, that's quite a fucking 'nother.
Don't forget rule #1: never sign anything withoutan your attorney present.
posted by Civil_Disobedient at 4:05 PM on December 31, 2009
At-will employment rules have been adopted by all states for more than a hundred years. The question is whether or not you have a valid exception to the rule.
do I have a wrongful firing case?
Depends on the violation and where you live, as everyone has said. If it were a statutory cause you'd be all set for a lawsuit (say, one that violated federal anti-discrimination statutes like the ones that protect against firing because of race/gender/religion/age/health). That doesn't sound like the issue here, though.
Some states will give an exception if the company fires you for a reason that violates it's own policy. If you live in one of those states, I'd start reading through the employee handbook. Good luck with that.
In some other states (notably fewer) firings have to conform to the wonderfully-vague "just cause" standard, which undoubtedly varies dramatically from jurisdiction to jurisdiction. If you live in one of those states, it couldn't hurt to give a lawyer a call.
If you don't fall into one of those umbrellas, I suppose you could always pitch your own legal battle from the hilltops if you've got lots of money and time, but I know I'd personally rather just let it go. Please note that this has absolutely nothing at all to do with collecting unemployment. If they want you gone, that's one thing. If they want to try and stop you from keeping food in your kid's mouth, that's quite a fucking 'nother.
Don't forget rule #1: never sign anything without
posted by Civil_Disobedient at 4:05 PM on December 31, 2009
This thread is closed to new comments.
I don't know about "opting out of allowing you unemployment benefits" though. I wouldn't think that would be an option, but that's outside the limited scope of my knowledge...
posted by amro at 8:25 PM on December 30, 2009