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May 3, 2012 6:55 AM Subscribe
What is my best option when my girlfriend who had a stroke less than a month ago was abruptly terminated by her company?
Hi. I'm not necessarily looking for legal advice or answers, just direction. I will try and make this succinct as possible.
On the morning of Tuesday April 10th my girlfriend drove herself to the ER with complaints of horrible abdominal pains. They were having great trouble figuring out what exactly was wrong. She was in the ER for most of the day and later that night was admitted. I believe at first they were leaning towards blood clot (she had flown back from Europe recently) and consequently didn't treat her pain as much as they could have. On the afternoon of Wednesday April 11th her pain increased, she had back and leg spasms, leg numbness and horrible pain in head, neck and back and she was moved to ICU. I drove up at 3:30a Thursday morning. Turns out she had a bleed inside her head, no blood in the brain tissue, but blood in sub-arachnoid, ventricular and cerebral spinal fluid. (Apologies if my medical words aren't accurate enough, I'm working from memory)
Doctors decided not to operate because of possible complications but instead let her body absorb the blood because she didn't have an active brain bleed when they "scanned" her. She was in ICU for 7 days (all about pain management and monitoring vitals), then about another week in the regular hospital (her body absorbed the blood) and is now in a rehab facility. When she moved to rehab we didn't have any definite time frame on how all of this was going to pain out but I personally was throwing around 2 months in my mind and that was assuming she got better. She has eyesight issues, numbness issues, strength issues, cognitive issues, etc. the whole kit and kaboodle.
Throughout all of this it appeared her company was being supportive. They tried to get the information to get her on short term disability right away. They pushed the insurance company to have her do rehab as close to me and her family as possible (she lives 2 hours away).
This week (after 3 days of actual therapy) on the same day she received her short term disability paperwork, she also received a notice from the company that she was being terminated for using company funds for personal purchases. Because of this she is no longer going to be getting her short term disability and her health insurance.
I don't know whether this personal purchases thing actually happened or not. In speaking with friends/family I found out that her father (who died of a stroke before he reached 50) had basically quit taking care of any financial things (depositing paychecks, paying bills, etc) in the few months before he passed. Do people who are stroke prone quit thinking clearly? I'm assuming anything's feasible but I don't know anything about the details of their case against her or her state of mind leading up to her hospitalization.
She has told me that the head of HR hates her because she (my gf) has been pushing for HR to be handled in a more professional manner and I know the CEO of the company started a long vacation when they returned from overseas. To my way of thinking this excuses nothing on her part.
I haven't decided what my ultimate course of action is going to be from a personal standpoint but as of now I told them I would help find a lawyer for them. At first I thought the right type of lawyer would be an employment lawyer because if there is no merit to what has happened then she is being given the shaft. On the other hand if it's even slightly accurate then it seems like an employment lawyer would not be appropriate because they had cause for firing her and the issue with these funds needs to be addressed. Her mom and I have discussed restitution if the allegations are true.
So do we choose a lawyer based on the assumption of innocence (employment lawyer), straight guilt (embezzlement lawyer?), complicated guilt (not being in her right mind) or something else that I'm not thinking of. I don't think my girlfriend is in the right mind to make any decisions about this at this time so, we her boyfriend and family, are trying to do the right thing.
If we pick a lawyer will he/she gather information and, if needed, properly decide "wait, i'm the wrong type of lawyer for you" and get them pointed to someone who is a better fit?
I've spent some time looking at the local Bar Association web site and I'm overwhelmed. I'm just trying to be impartial and do the best I can given the circumstances.
Hi. I'm not necessarily looking for legal advice or answers, just direction. I will try and make this succinct as possible.
On the morning of Tuesday April 10th my girlfriend drove herself to the ER with complaints of horrible abdominal pains. They were having great trouble figuring out what exactly was wrong. She was in the ER for most of the day and later that night was admitted. I believe at first they were leaning towards blood clot (she had flown back from Europe recently) and consequently didn't treat her pain as much as they could have. On the afternoon of Wednesday April 11th her pain increased, she had back and leg spasms, leg numbness and horrible pain in head, neck and back and she was moved to ICU. I drove up at 3:30a Thursday morning. Turns out she had a bleed inside her head, no blood in the brain tissue, but blood in sub-arachnoid, ventricular and cerebral spinal fluid. (Apologies if my medical words aren't accurate enough, I'm working from memory)
Doctors decided not to operate because of possible complications but instead let her body absorb the blood because she didn't have an active brain bleed when they "scanned" her. She was in ICU for 7 days (all about pain management and monitoring vitals), then about another week in the regular hospital (her body absorbed the blood) and is now in a rehab facility. When she moved to rehab we didn't have any definite time frame on how all of this was going to pain out but I personally was throwing around 2 months in my mind and that was assuming she got better. She has eyesight issues, numbness issues, strength issues, cognitive issues, etc. the whole kit and kaboodle.
Throughout all of this it appeared her company was being supportive. They tried to get the information to get her on short term disability right away. They pushed the insurance company to have her do rehab as close to me and her family as possible (she lives 2 hours away).
This week (after 3 days of actual therapy) on the same day she received her short term disability paperwork, she also received a notice from the company that she was being terminated for using company funds for personal purchases. Because of this she is no longer going to be getting her short term disability and her health insurance.
I don't know whether this personal purchases thing actually happened or not. In speaking with friends/family I found out that her father (who died of a stroke before he reached 50) had basically quit taking care of any financial things (depositing paychecks, paying bills, etc) in the few months before he passed. Do people who are stroke prone quit thinking clearly? I'm assuming anything's feasible but I don't know anything about the details of their case against her or her state of mind leading up to her hospitalization.
She has told me that the head of HR hates her because she (my gf) has been pushing for HR to be handled in a more professional manner and I know the CEO of the company started a long vacation when they returned from overseas. To my way of thinking this excuses nothing on her part.
I haven't decided what my ultimate course of action is going to be from a personal standpoint but as of now I told them I would help find a lawyer for them. At first I thought the right type of lawyer would be an employment lawyer because if there is no merit to what has happened then she is being given the shaft. On the other hand if it's even slightly accurate then it seems like an employment lawyer would not be appropriate because they had cause for firing her and the issue with these funds needs to be addressed. Her mom and I have discussed restitution if the allegations are true.
So do we choose a lawyer based on the assumption of innocence (employment lawyer), straight guilt (embezzlement lawyer?), complicated guilt (not being in her right mind) or something else that I'm not thinking of. I don't think my girlfriend is in the right mind to make any decisions about this at this time so, we her boyfriend and family, are trying to do the right thing.
If we pick a lawyer will he/she gather information and, if needed, properly decide "wait, i'm the wrong type of lawyer for you" and get them pointed to someone who is a better fit?
I've spent some time looking at the local Bar Association web site and I'm overwhelmed. I'm just trying to be impartial and do the best I can given the circumstances.
On the other hand if it's even slightly accurate then it seems like an employment lawyer would not be appropriate because they had cause for firing her and the issue with these funds needs to be addressed.
An employment lawyer is exactly the right move even in this situation, though; many employment lawyers will have advised clients subsequent to termination for cause. Moreover, any competent attorney will tell you upfront about their practice areas and will refer you out as appropriate for matters outside their expertise.
I've spent some time looking at the local Bar Association web site and I'm overwhelmed.
Ask friends if they have used any employment lawyers in your jurisdiction and if they have found one that they liked.
If you ask the mods to add to this thread a comment about the geographic location of your girlfriend's workplace, you may even get some recommendations from MetaFilter.
posted by Inspector.Gadget at 7:53 AM on May 3, 2012 [1 favorite]
An employment lawyer is exactly the right move even in this situation, though; many employment lawyers will have advised clients subsequent to termination for cause. Moreover, any competent attorney will tell you upfront about their practice areas and will refer you out as appropriate for matters outside their expertise.
I've spent some time looking at the local Bar Association web site and I'm overwhelmed.
Ask friends if they have used any employment lawyers in your jurisdiction and if they have found one that they liked.
If you ask the mods to add to this thread a comment about the geographic location of your girlfriend's workplace, you may even get some recommendations from MetaFilter.
posted by Inspector.Gadget at 7:53 AM on May 3, 2012 [1 favorite]
Get an employment lawyer.
It really irritates me how often I see this happen. Worker is injured or sick and out for a month, then the company finds a reason to terminate them. One place I worked even flat out told me they were waiting for a worker to get back from sick leave so they could fire her, but had to keep her desk so it looked like they weren't planning it.
A close friend's partner just got fired on the day she officially returned from sick leave for serious spinal issues. She retained an expensive employment lawyer in NYC, on contingency, no less, who expects that they'll get a settlement and possibly reinstatement. YMMV, of course.
posted by MonsieurBon at 8:42 AM on May 3, 2012 [2 favorites]
It really irritates me how often I see this happen. Worker is injured or sick and out for a month, then the company finds a reason to terminate them. One place I worked even flat out told me they were waiting for a worker to get back from sick leave so they could fire her, but had to keep her desk so it looked like they weren't planning it.
A close friend's partner just got fired on the day she officially returned from sick leave for serious spinal issues. She retained an expensive employment lawyer in NYC, on contingency, no less, who expects that they'll get a settlement and possibly reinstatement. YMMV, of course.
posted by MonsieurBon at 8:42 AM on May 3, 2012 [2 favorites]
This week (after 3 days of actual therapy) on the same day she received her short term disability paperwork, she also received a notice from the company that she was being terminated for using company funds for personal purchases. Because of this she is no longer going to be getting her short term disability and her health insurance.
This is highly, highly sketchy. In many states there's actually a presumption at law that if an employee is fired or let go after certain events that the firing is wrongful or discriminatory. Using sick time or complaining about labor practices are frequently construed to be such events.
She needs a lawyer, now. And whether or not she misused funds, this is a job for an employment lawyer.
And if it is worker's comp
It's probably not, but that should be looked into. Workers' compensation is for injury and illness that is directly caused by one's duties as an employee. The fact that one gets sick at work is not actually enough; the sickness needs to be caused by work for workers' compensation to apply. It's could be very difficult to establish that something like a stroke was caused by a workplace condition or activity, but it should be examined.
Regardless, whether or not she continues to be employed is irrelevant: if this stroke happened because of something at work, she's potentially eligible for coverage, even if she's been fired since. Employers can't get out of their workers' compensation obligations by firing sick or injured employees, as these things are generally analyzed on an "occurrence" basis, i.e., when the thing happened, than a "claims made" basis, i.e., when the claim is filed.
For the workers' comp side of things, you need a plaintiff's attorney that does workers' comp stuff. This may or may not be the same lawyer as handles the employment side of things, as they're pretty different areas of law. Employment lawyers focus on labor law almost exclusively, while workers' compensation lawyers are basically just doing specialized tort practice. The two don't overlap as much as you might think.
posted by valkyryn at 9:48 AM on May 3, 2012
This is highly, highly sketchy. In many states there's actually a presumption at law that if an employee is fired or let go after certain events that the firing is wrongful or discriminatory. Using sick time or complaining about labor practices are frequently construed to be such events.
She needs a lawyer, now. And whether or not she misused funds, this is a job for an employment lawyer.
And if it is worker's comp
It's probably not, but that should be looked into. Workers' compensation is for injury and illness that is directly caused by one's duties as an employee. The fact that one gets sick at work is not actually enough; the sickness needs to be caused by work for workers' compensation to apply. It's could be very difficult to establish that something like a stroke was caused by a workplace condition or activity, but it should be examined.
Regardless, whether or not she continues to be employed is irrelevant: if this stroke happened because of something at work, she's potentially eligible for coverage, even if she's been fired since. Employers can't get out of their workers' compensation obligations by firing sick or injured employees, as these things are generally analyzed on an "occurrence" basis, i.e., when the thing happened, than a "claims made" basis, i.e., when the claim is filed.
For the workers' comp side of things, you need a plaintiff's attorney that does workers' comp stuff. This may or may not be the same lawyer as handles the employment side of things, as they're pretty different areas of law. Employment lawyers focus on labor law almost exclusively, while workers' compensation lawyers are basically just doing specialized tort practice. The two don't overlap as much as you might think.
posted by valkyryn at 9:48 AM on May 3, 2012
If we pick a lawyer will he/she gather information and, if needed, properly decide "wait, i'm the wrong type of lawyer for you" and get them pointed to someone who is a better fit?
They absolutely should. A good lawyer knows when to refer work that is beyond his or her expertise. A bad lawyer thinks that they can do anything or figure it out along the way. That's why it's imperative that you get recommendations, keep interviewing until you're comfortable, and ask tough questions. Like a primary care doctor, the lawyer you hire should coordinate the legal services that you receive even if he or she does not actually perform them.
posted by moammargaret at 10:08 AM on May 3, 2012
They absolutely should. A good lawyer knows when to refer work that is beyond his or her expertise. A bad lawyer thinks that they can do anything or figure it out along the way. That's why it's imperative that you get recommendations, keep interviewing until you're comfortable, and ask tough questions. Like a primary care doctor, the lawyer you hire should coordinate the legal services that you receive even if he or she does not actually perform them.
posted by moammargaret at 10:08 AM on May 3, 2012
Lawyer lawyer lawyer lawyer lawyer lawyer. Lawyer.
Start with the employment lawyer; find someone with experience in handling ADA claims.
posted by Sidhedevil at 10:45 AM on May 3, 2012 [3 favorites]
Start with the employment lawyer; find someone with experience in handling ADA claims.
posted by Sidhedevil at 10:45 AM on May 3, 2012 [3 favorites]
None of us have the "true" facts -- all we know is what your girlfriend told you, and what her company has claimed. Since nobody here on the internet is able to resolve the factual disputes, let me give you the general lay of the land:
The ADA prohibits discrimination on the basis of disability (which your girlfriend has), and the FMLA prohibits termination for taking leave for a serious health condition (which this undoubtedly is -- regardless of whether she has formally requested FMLA leave).* Therefore, terminating an employee because they exercise their right to take leave would be illegal.
However, what her employer has articulated would be considered a legitimate, nondiscriminatory reason for termination. In other words, having a disability or taking leave under the FMLA does not insulate an employee from discharge for other misconduct (even where the misconduct is arguably caused by the disability, a possibility to which you alluded in your post). This would be the employer's burden to prove, but if they're able to do so (and there's no other evidence that this is just a pretext for discrimination) they would prevail. While the timing could give rise to an inference of discrimination, that inference will be easily rebutted if the evidence supports their position.
In any case, an employment lawyer is the one to talk to. You should be able to obtain a preliminary consultation at no charge.
*your girlfriend may or may not be eligible for FMLA leave depending on the size of her company, how long she's worked for the company, and how many hours she worked in the past 12 months.
posted by pardonyou? at 1:56 PM on May 3, 2012
The ADA prohibits discrimination on the basis of disability (which your girlfriend has), and the FMLA prohibits termination for taking leave for a serious health condition (which this undoubtedly is -- regardless of whether she has formally requested FMLA leave).* Therefore, terminating an employee because they exercise their right to take leave would be illegal.
However, what her employer has articulated would be considered a legitimate, nondiscriminatory reason for termination. In other words, having a disability or taking leave under the FMLA does not insulate an employee from discharge for other misconduct (even where the misconduct is arguably caused by the disability, a possibility to which you alluded in your post). This would be the employer's burden to prove, but if they're able to do so (and there's no other evidence that this is just a pretext for discrimination) they would prevail. While the timing could give rise to an inference of discrimination, that inference will be easily rebutted if the evidence supports their position.
In any case, an employment lawyer is the one to talk to. You should be able to obtain a preliminary consultation at no charge.
*your girlfriend may or may not be eligible for FMLA leave depending on the size of her company, how long she's worked for the company, and how many hours she worked in the past 12 months.
posted by pardonyou? at 1:56 PM on May 3, 2012
Pyou is correct, with one modification. The ADA does not prohibit discrimination on the basis of disability if the disability means she can no longer do the job. It sounds like that has yet to be determined.
posted by yclipse at 2:31 PM on May 3, 2012
posted by yclipse at 2:31 PM on May 3, 2012
Side legal info note: The FMLA is not the only federal law that requires that employers provide leaves of absence. The ADA also requires that employees be granted leaves of absence as a reasonable accommodation for treatment/recovery related to a disability (where it is plausible that the leave will enable the employee to recover and return to work), unless the leave would impose an undue hardship.
posted by ClaudiaCenter at 6:37 PM on May 3, 2012
posted by ClaudiaCenter at 6:37 PM on May 3, 2012
I don't know anything about the legal end but this question: Do people who are stroke prone quit thinking clearly? struck me. I have several stroke victims in my extended family due to a clotting disorder, and my father suffered and mostly recovered from a massive brain aneurysm last year (unusually good outcome). So from that limited pool...no, I don't think there is any cognitive impairment before a stroke, but there may be a series of mini-strokes before a big stroke that could cause issues. But I would talk to her neurologist about it. GL!
posted by Zen_warrior at 6:59 PM on May 3, 2012
posted by Zen_warrior at 6:59 PM on May 3, 2012
In addition to getting a lawyer, I would look into her employer's disciplinary procedures (should be in the employee handbook) and see whether they violated their own policy by summarily dismissing her when she was in no position to answer the charges.
posted by Perodicticus potto at 3:34 AM on May 4, 2012
posted by Perodicticus potto at 3:34 AM on May 4, 2012
Pyou is correct, with one modification. The ADA does not prohibit discrimination on the basis of disability if the disability means she can no longer do the job. It sounds like that has yet to be determined.
That's true but kind of irrelevant, since they've already discharged her. It may ultimately be the case that she would be unable to perform the essential functions of the job (w/ or w/o reasonable accommodation), but she'll never have an opportunity to establish that -- and the employer won't be able to use that as a defense since they've gone the "personal use of company funds" route. I suppose in theory if the employer's explanation is shown to be pretext (which would mean discrimination), her ultimate inability to perform the job could be a limitation on future damages.
posted by pardonyou? at 8:33 AM on May 4, 2012
That's true but kind of irrelevant, since they've already discharged her. It may ultimately be the case that she would be unable to perform the essential functions of the job (w/ or w/o reasonable accommodation), but she'll never have an opportunity to establish that -- and the employer won't be able to use that as a defense since they've gone the "personal use of company funds" route. I suppose in theory if the employer's explanation is shown to be pretext (which would mean discrimination), her ultimate inability to perform the job could be a limitation on future damages.
posted by pardonyou? at 8:33 AM on May 4, 2012
Mod note: From the OP:
Thanks to everyone for their responses! The trip to Europe was a little over a week before all of this happened and _was_ a work related trip. My girlfriend is currently rehabing in Central Ohio so that would be the best area for lawyer recommendations.posted by jessamyn (staff) at 11:30 AM on May 4, 2012 [1 favorite]
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