Got fired, consulted an attorney. I have 3 options. Help me decide.

August 27, 2013 7:00 PM

I don't want to sue. I don't want money. I just want to be able to apply for jobs without holding my breath. Consulted with two attorneys. Should I hire one of them, try to do this on my own, or just walk away?

2 months ago I got fired. It was political, ugly and quite devastating. The day I was fired my employer gave me a termination notice that listed 7 dates of "performance discussions" and a performance improvement plan + performance improvement meeting with the supervisor dated a month before I was fired.

This plan does not exist, not in the slightest. My supervisor and I never had such a meeting and I never saw or signed any such plan. Most "discussion" dates listed are completely made up. I was never written up, my supervisor did not give me any documentation about performance issues, and I was not told that "discussions" constituted verbal warnings.

Basically my supervisor decided to fire me and made up a bunch of bullshit to make it look like they had followed internal company procedures for terminating an employee.

But. This is not illegal. I work in an at will state. It was basically a sloppy, dumb, cover-your-ass move when there was no reason to cover their ass.

I consulted with 2 attorneys and both stated that they would be happy to represent me in asking my former employer to reclassify my separation as a resignation and agree that they will not make negative/derogatory statements about my employment to prospective employers. I'm hoping I might be able to clean up my employment record enough so that I don't have to worry about what my employer might say about me or do the kabuki dance of explaining why I left my last job. Conventional wisdom has it that most employers won't disclose anything but the bare minimum about former employees....but, this is certainly not always the case and I think it would be foolish to bank on this. Besides, my state also grants employers protection from liability if the negative information they report is in a good faith response to an employment inquiry/reference.

Both attorneys were clear that my former employer very well could agree to these things, but might not. Since no laws were broken, my employer does not have a compelling reason to do anything. Both also said I could try and do this on my own.

So. Lawyer up? Try to do this on my own? Walk away?

On the Walk Away side: I have two good references from co-workers at this organization and good references from several past employers as well as the supervisor of the very work/field related organization I currently volunteer with. After 2 months I'm starting to feel better and am starting to regain some professional confidence. I'm not sure I want to mess with that. It's been a hard rebound and I'm still not back to my pre-fire normal.

I could hire an attorney to do try to do this for me. I have enough put aside to pony up for a retainer, but it would hurt financially - a lot. It would be worth it for a relatively cleaned up employment history and some emotional satisfaction that I didn't slink away quietly. Still, I could easily be throwing away $1500-$2000.

I might try to do this myself, if for no other reason than to be able to say that I did my best to look out for my best interests. If I decide to try and do this on my own, how should I go about it? I'm looking here for ways to frame a letter and word the request.

Thanks all!

posted by anonymous to Law & Government (21 answers total)

I would say walk away. You have two good references and they can help vouch for you if ugliness rears its head. This will also allow you to take the high road and appear even more blameless than you already are.
posted by tafetta, darling! at 7:05 PM on August 27, 2013 [3 favorites]

Walk away. You'll be out a fair chunk of change, there's no guaranteed outcome, you may well alienate your currently good references from the company, and you could also end up actually harming your reputation more if it starts getting spread around that you're litigious.
posted by vegartanipla at 7:07 PM on August 27, 2013 [2 favorites]

Walk away, not worth the stress and you can do better things with the $2k. You have my sympathy, good luck with the job hunt.
posted by arcticseal at 7:19 PM on August 27, 2013

What would it cost to have an attorney write a letter pointing out that your employer lied, and making it clear to them that a bad reference would be actionable. Lawyers can be very snotty in very nice language. Potential employers will call your old boss, and he may choose to lie some more.

Also, you should apply for Unemployment. If they say you were fired for cause, you can rebut their claims in a common sense hearing where you probably don't need a lawyer.

It's vile when employers pull crap like this.
posted by theora55 at 7:19 PM on August 27, 2013 [27 favorites]

When someone calls this employer to ask, "Is the employee eligible for rehire?", and they answer "No", you're at a disadvantage against every other candidate out there. When i hear someone was fired for cause, I assume they've been stealing or sexually harassing or something equally serious. Fired for cause is not someone who missed a few quotas. Fight this, they have no paper trail and if HR and Legal don't know that already they will pretty soon after your lawyer's letter lands on their desk. Take your lawyers advice, but I see no reason not to ask for some amount of money in lieu of the severance you would have otherwise received.
posted by IanMorr at 7:21 PM on August 27, 2013 [11 favorites]

I vote lawyer. Let them handle it, the emotional side, too. It's what you are paying for.

Yes your lawyer should ask for severance, even if you don't get it.

You are dealing with proven liars. The professional thing to do is hire a lawyer and safeguard your professional reputation.

Good luck.

PS - I negotiate LOTS of stuff on my own. People tell me I should have gone to law school. I would not attempt this on my own. Nope. No way.

Hire a lawyer!
posted by jbenben at 7:28 PM on August 27, 2013 [3 favorites]

Maybe your industry/are is not like this, but where I work, in what I do, word gets around. If I heard that you were fired from a job but still had excellent references from other people involved in your work/volunteer experiences if would be much more likely to hire you than I would if I heard that you sued a previous employer over your termination.
posted by Rock Steady at 7:29 PM on August 27, 2013 [3 favorites]

Speak to the attorneys again. Explain your decision making process. Ask them their frank advice as to what to do.

Ask the mods to close this thread.
posted by Ironmouth at 7:41 PM on August 27, 2013 [1 favorite]

Have a friend pose as an HR rep and call to ask if you're eligible for re-hire and see what they say. As you said, it's conventional wisdom that they will say the bare minimum -- it's pretty easy to find out if it would be true in this case.
posted by telegraph at 7:45 PM on August 27, 2013 [8 favorites]

If you are an at-will employee, you cannot sue for wrongful termination. But you already know that. What is lurking out there is potential defamation. Your former employer made up stuff to make it look like you were fired for a good reason, even though the law does not require that they have a good reason. That is not defamatory unless the former employer communicates false information to a future potential employer.

I would consult a lawyer. And not just any lawyer. One who knows this stuff cold.
posted by yclipse at 7:58 PM on August 27, 2013 [1 favorite]

Keep in mind that you don't have an employment "record" like you have a credit record. You just have a resume and whatever your former employers will say about you. Think about the industry you're in, the strength of the other recommendations you have from people who work at your former employer, how likely you are to get another acceptable job in your field given the current state of things, etc. If the only real value of lawyering up would be emotional satisfaction, consider other, less expensive ways of getting that. On the other hand, it is possible that a good letter from a lawyer would put the fear of god in your former employer and result in an agreement that they wouldn't disparage you in recommendations.
posted by unreadyhero at 8:36 PM on August 27, 2013 [1 favorite]

I think you should strongly consider filing a lawsuit for the following reasons:

1) MoonOrb, who clearly knows what he is talking about, says you may have a good case.
2) Revenge. It gets a bad name but honestly, these people dearly deserve to be sued, and I bet it would make you feel a lot better than remembering how you got screwed over and had to just take it.
3) Justice. These people are evil and if no one ever stands up to them, they will do this to other people. You sound like you'll be ok regardless, but what if the next person ends up living on the street because of these tremendous assholes? I'm always of the school of thought that those of us who can stand up to injustice without risking too much have the largest obligation to.

There will always be a few people who will be prejudiced against hiring you if they hear you were involved in a lawsuit, but you really really don't want to work for those people anyway. Whatever happens, you're not Edward Snowden. You just had a run-in with some assholes. It happens to most of us eventually. You'll work again. Good luck!
posted by drjimmy11 at 9:24 PM on August 27, 2013 [2 favorites]

I want to be more clear. I am an employment attorney. You most definitely should not be seeking any advice here. You have consulted with attorneys--rely on their judgement. If you need more help making a decision, discuss it with them--they are legal professionals and have access to facts none of us have here.

This is not legal advice, but advice to get legal advice from practitioners you have discussed your case with.

Also close this thread, and don't respond--these are potentially discoverable information.
posted by Ironmouth at 10:01 PM on August 27, 2013 [3 favorites]

I would either listen to the advice of your lawyers, or walk away. I wouldn't try to do this yourself. One reason for this is that it sounds like an HR/legal process - and one you aren't familiar with, while your employer - possibly with a legal team - would be. It would put you at a disadvantage. You are paying for the lawyer's expertise - to know how to word the letter, to understand how to gauge your former employer's response, to help you understand reasonable options. If you don't know this now, figuring it out when it really matters could put undue pressure on you. So if you're going to do it, do it right, and hire expertise.

The other piece is dealing with the fact that you feel pissed off and wronged. Walking away doesn't mean you are letting your former employer walk all over you. You can understand the full cost and possible benefits of what you are dealing with and decide that it not worth the cost in terms of time, effort and money. Sometimes crappy situations aren't things we get justice from this time, but learn lessons from for next time. What they did sounds shitty, but if the issue is the recommendation, ask a lawyer about the legal issues of having a friend call and ask for a reference just to see what they would say.
posted by anitanita at 10:41 PM on August 27, 2013

If you have a friend who can do it well, have them call your previous employer, both HR and your old boss, and ask for a reference, using a checklist for extra credibility.

As far as actually suing your employer, it takes a long time, they will sling mud, and it may take you longer to recover and move on if you're enmeshed in a battle. Decide what your goal is, probably something like I want to get a new job, and commence kicking ass at my profession again. Good luck; it's a rotten deal.
posted by theora55 at 11:52 PM on August 27, 2013

Also, you should apply for Unemployment. If they say you were fired for cause, you can rebut their claims in a common sense hearing where you probably don't need a lawyer.

Yes. I, a non attorney, would probably do it this way. Make the unemployment claim, get an ajudication in my favor since these dates were phony, and THEN file a lawsuit that asks for the remedy of a clean HR record and non-negative employment verification. And attorney fees.

At will doesn't mean a free for all. They can fire you for no reason if they want, but at will doesn't give them the right to cause you harm. What they did might not be illegal, per se, but it sounds like it is actionable.
posted by gjc at 1:57 AM on August 28, 2013 [2 favorites]

Just walk away. First, because you have references. Second, because this isn't going to follow you around on some magical perminant record. Third, because if a potential future employer found out you sued a past employer, nothing else is going to matter.
posted by NotMyselfRightNow at 5:16 AM on August 28, 2013

Lawyer up. Not only because the employment attorney knows more about this field of law than you do, but also because the temporary financial pain from paying the retainer is going to be much easier to bear than the more lasting financial pain of difficulty getting a new job because of the lies of your former employer.
posted by tckma at 6:21 AM on August 28, 2013 [1 favorite]

First of all, being terminated means that you can collect unemployment benefits. So what you want is an attorney who will fight to change your "termination for cause" into a "lay-off".

An employment attorney will know the ins and outs of this situation and may make recommendations for things to do.

As for future jobs, during interviews I'd have a prepared statement ready to address the issue, so that when they call to verify your employement, they'll already know what to expect. Something like, "I really enjoyed working at XYZ company, but then there was a change in our management structure and as part of that restructuring, I was let go. Often, as these things go, it was unpleasant, but we learn from adversity and I'm ready to move forward with a new challenge."

If you sue them, they can't do anything except verify your dates of employment, for fear of increasing their liability. So for that reason alone, I'd sue the bejesus out of them. But I'm a vindictive cow.

As for your 'employment record' there is no 'Permanant Record'. Just apply for new jobs and move on.
posted by Ruthless Bunny at 6:39 AM on August 28, 2013 [2 favorites]

I basically disagree with all of drjimmy's points:

1) MoonOrb, who clearly knows what he is talking about, says you may have a good case.

Possibly having a good case and having a good case are two different scenarios. I don't think suing in the first scenario is a good idea. Better to figure out if you're in the second scenario or not.

2) Revenge. It gets a bad name but honestly, these people dearly deserve to be sued, and I bet it would make you feel a lot better than remembering how you got screwed over and had to just take it.

It's very rare for a lawsuit brought for the purposes of revenge to turn out well for the person bringing the suit from a personal satisfaction standpoint. Though it may sound counter-intuitive, settling old scores isn't really what the legal system is good at. The system is pretty good at repaying people for the losses they sustain as a result of someone else's illegal act ("tort," really). That's about it.

3) Justice. These people are evil and if no one ever stands up to them, they will do this to other people. You sound like you'll be ok regardless, but what if the next person ends up living on the street because of these tremendous assholes? I'm always of the school of thought that those of us who can stand up to injustice without risking too much have the largest obligation to.

This is related to #2, above. The amount of time and effort that goes into a lawsuit makes it tough to feel like you've come out ahead justice-wise, especially if it's unlikely you'll recover much money. I can't tell you if you have a good case or not, but if you don't, it's generally a bad idea to file a lawsuit fueled by ulterior motives.
posted by craven_morhead at 8:04 AM on August 28, 2013 [1 favorite]

IANAL and have no advice on your legal options (except that, yes, you should consult with your actual lawyers), but I agree with theora55 that you should apply for unemployment. Since you were not really fired for cause, you're entitled to it, and your application could be a bellwether to see if the company will contest.

If they don't, the memos may be more about internal ass-covering than about a story they're willing to tell in public.
posted by Gelatin at 9:09 AM on August 28, 2013 [1 favorite]