How to Protect My Employability
April 14, 2014 8:36 AM   Subscribe

A combination of anxiety attack and anemia (the term used by the paramedics was close to that, I don't recall) caused me to pass out in my office. I was discovered unconscious, and came to as the EMT people arrived. I was not scheduled to work that day, but agreed to help the shift supervisor and departing assistant manager, who refused to come into work. The shift supervisor did not react well to the possibility of having to stay in the store to close it. This resulted in a public confrontation after the paramedics left (because I refused further medical treatment; they told me to go home immediately). I ended up closing the store. My store manager, who tried to fire me once already, has informed the District Manger and HR. I was told to come in at my scheduled time, but I can expect to sign papers. What can I expect during a retail-industry termination?

My shift is in 30 minutes. While my boss has no authorization to fire me, I believe - in combination with the write-up I received a month ago, and the continued absence of my annual review - that he has made the case to HR for my termination.

The departing assistant manager has transferred to another store for the same reasons that I wanted to quit, and has cut contact with everyone who works here. Therefore, I have no references. So:

1. Is it possible to convince HR, if I am in fact being terminated, to classify my termination as "without cause?"

2. Someone called the Ethics department on my store manager, and I ended up involved in an HR report and subsequent investigation. There is a small chance that my termination will get reduced to a suspension. Does this come up in a background check? Can a potential employer ask about this?

3. When looking for another job, can I forward all inquiries about my employment to HR INSTEAD of the store? Or will potential employers just call the store anyway?
posted by Ashen to Work & Money (24 answers total) 4 users marked this as a favorite
don't sign any papers until you have reviewed them with counsel. one thing you might mention during the meeting is that the store manager's actions appear to be in retaliation for your involvement in the ethics complaint.

with no annual review, they are already out-of-handbook on this one, and the manager who should have performed it is derelict in his/her duty.

i am not a labor lawyer. good luck.
posted by bruce at 8:54 AM on April 14, 2014 [3 favorites]

If they offer you papers, look at them, raise an eyebrow, and say, "I'd like to have my lawyer look over these." They are on really shaky ground here - firing you the day after a medical incident looks pretty shady.

When looking for a job, there is no telling who they will call.
posted by corb at 8:57 AM on April 14, 2014 [3 favorites]

Are you being terminated? This is certainly not how this situation should be handled. But for the sake of your question let's assume they are trying to terminate you.

1. This doesn't really matter. It is highly likely that you will still qualify for unemployment since you usually have to be pretty damn negligent to get denied unemployment in most circumstances. I mean if you passed out because you were huffing glue in the back room that is one thing.

2. It is more than likely that all a background check is going to turn up is the dates that you worked for said employer, your title, and MAYBE if you are eligible for re-hire. Especially in retail. You may be thinking of a reference check in which case yes this could come up if you put this manager down as a reference. Don't put this manager down as a reference.

3. Of course. And most background check companies would much rather speak to HR than your manager anyway because it is faster and more efficient to get your dates and title.

Agree from a legal and ethical standpoint this is a TERRIBLE time to fire you. Right after participating in an ethics investigation and the day after a medical episode? I'd be putting all my efforts into making sure you are ok and if it is safe for you to be in the store with your medical condition. Possibly asking for you to be evaluated and cleared by a medical professional.
posted by magnetsphere at 9:03 AM on April 14, 2014 [1 favorite]

This is a serious Americans with Disabilities Act situation.

Consult a local employment attorney immediately. Do not sign anything until you do so.
posted by valkyryn at 9:23 AM on April 14, 2014 [16 favorites]

Yeah, this is ridiculous. They would have to be morons to fire you right after a serious medical episode.
posted by Slinga at 9:30 AM on April 14, 2014

I'm going to nth not to sign anything!

Labor lawyers might offer a free consultation. I'd call around and ask.

Save any documentation from the (rather scary) medical episode and anything else that's come up at this job. Write everything down that's happened just in case -- dates, names, etc.

Please take care of yourself!
posted by mamabear at 9:37 AM on April 14, 2014

Let me just say upfront that I am NOT dogging you out on this - it's cruddy that you had a medical incident like this, especially at work, and I hope you can get that resolved above all else. Please don't take this as me turning the blame on you, I just want to give perspective from someone who has dealt with this.

When I worked in retail (mom & pop, not corporate, so YMMV) many moons ago, I had an employee who would seem to have an "anxiety attack" every time they clocked in for a shift they didn't want. They would hyperventilate, shake, rock, and say they needed to go home. They flipped out every time we asked if they needed medical help and told us "it just takes time to go away." This had usually been preceded by them asking me a few days before if I could find someone else to cover that shift. At that point, this person had already taken their max days off for the year (it was March) and had been written up for both this and other incidents. The first time they pulled this stunt, we were concerned, the second time suspicious, and by the third time in as many weeks, we knew it was all BS to get out of working that day.

After one particularly bad incident like this, we decided to terminate this person. We hesitated at first because of the medical angle, and called a labor attorney. He said that since we had documented previous problems as well as the benefit of the law leaning towards our side (Utah), we'd be fine to terminate this person.

If a medical professional told you to go home and rest, that isn't something an employer can override, and that is where you could probably fight this. If you've previously had issues and writeups, this may just be an unfair straw that broke the camel's back. It sounds like this manager isn't someone you'd want to work for anyway, so this may just be an opportunity to find something that will be better for you personally.

Hope you can navigate this - if resources permit, talking to a lawyer is probably your best single course of action. I realize at this point in the day you've already faced whatever music is playing, but you may still want to chat with someone just to make sure everything was on the up and up.
posted by _DB_ at 10:01 AM on April 14, 2014 [5 favorites]

If for whatever reason you do end up being asked to leave, let them terminate you so you can collect unemployment.

Sign nothing, insist on getting your termination letter on the spot. Then head right over to the unemployment office.

When putting the job on your resume, just put the name of the company, not the actual store. Most places will call the HR number anyway.

At this point, don't worry about what kind of termination it is. You can appeal with Unemployment, and you'll have a really good case, especially if you have a pending complaint and this medical thing to refer to.

Besides, I think everyone in the world has been terminated for cause. It's character building. It's certainly not an employment killer.

Hang in there!
posted by Ruthless Bunny at 10:15 AM on April 14, 2014 [4 favorites]

How to protect employability, well...don't sign anything. That can come back to bite you in the ass.

I think the key problem here is that you refused medical attention. Without it, you don't really have anything documented that says you had a medical condition that might give you better protection from being fired. You were also insubordinate. They told you to go home, you refused. Not cool.

I might, if it's clear that not being fired is a possibility, acknowledge what you did that was wrong and promise to follow their management instructions in the future and not to engage in verbal altercations.

But even if you do get fired, it's not the end of the world. You may not have a person who could act as a reference there, so you may have to get creative with former bosses before this as references.
posted by inturnaround at 11:33 AM on April 14, 2014

This is but a small piece of your overall situation, but remember that in most jurisdictions, if you signed a form (electronic or paper) indicating that you refused emergency medical care or transport to the hospital, you should be able to request a copy of that patient care report from the agency involved. Given the situation you described, I would be very surprised if the Paramedics did not complete a report to document your refusal of care. I can't say whether your refusal has any bearing on your overall situation, but if you need to provide evidence of of a medical event, there should be a record of it. (Credentials: I am a career Paramedic.)
posted by itstheclamsname at 11:52 AM on April 14, 2014 [1 favorite]

I think the key problem here is that you refused medical attention. Without it, you don't really have anything documented that says you had a medical condition that might give you better protection from being fired.

He/she has the call report, if necessary--EMT's fill out copious amounts of paperwork, complete with medical info, whether or not a patient is transported to a hospital. (Also, the wording of, "refused further medical treatment" leads me to believe that what was refused was not on-the-scene evaluation, etc., but a trip to the ER afterwards.)

You were also insubordinate. They told you to go home, you refused. Not cool.

No, the EMTs told the OP to go home, but after they left, the OP's boss flipped out and the OP placated him/her by staying to close up the store instead of following medical advice. REALLY not cool.
posted by blue suede stockings at 11:53 AM on April 14, 2014 [6 favorites]

I can't imagine anyone sane trying to fire you for staying to close the store when nobody else was willing or able to do so. However, having read and responded to your previous question...I wouldn't put anything past your manager.

Please let us know what happened when you went into work - if you were presented with walking papers or had anyone from HR speak with you, that information may change the advice you get.
posted by trivia genius at 12:25 PM on April 14, 2014

Response by poster: Hi, I managed to take a lunch break (which is rare for me) to reply to this:

When I walked in, I wasn't presented with anything. In fact, the store manager told me that since he wasn't actually present for the situation, all he can do is gather stories from the other associates and forward those to HR. The other shift supervisor (she isn't my boss, she's my peer - although I am the senior and more experienced of the two) began writing her testimony yesterday, which is when I had offered to come into the store and complete tasks that couldn't be completed on Saturday. Because after the confrontation, I just decided to spend a few hours resting in the office until she left, and then closed the store. It may help my case that I have covered her shifts on multiple occasions, and have not left her shorthanded the number of times she has done so to me (this is on record). It also helps that in the second attempt to communicate with the other shift supervisor, she told me to see a therapist (I am) because if she hadn't completed anger management, she would have beaten me up for confronting her about her irrational attitude towards me. Although I question the usefulness of mentioning it, because it can be construed as hearsay.

Right now, the situation is thus: maintain the status quo until we hear from the District Manager and HR, who will deal with me once the investigation is complete. But the other associates are also being called in for character testimonies (because the shift supervisor accused me of faking my illness prior to finding me unconscious, but still thinks that I faked THAT) so...this is apparently more complicated than I thought. And significantly more stressful, because I can't use any of my vacation days to rest while this gets sorted out.

I can't update more because my breaks seem to fly by, but can answer follow-up questions after I return this evening. Thank you for your replies so far.
posted by Ashen at 1:15 PM on April 14, 2014

Response by poster: Also, for those asking about previous documented issues:

1. HR is aware that I have an anxiety disorder, and that I have started taking new meds to deal with my boss. This is a mistake, and I imagine that this will bite me in the ass.

2. My first write-up was for being 6 minutes late. My second write-up was for using a break to visit a doctor, although I had gotten his prior verbal and (while in the dr's office) written approval to go beyond my break. The only reason I left was because I started experiencing sharp pains and bloody urine. I probably should have waited until my day off to get it checked out, but, hindsight
posted by Ashen at 1:20 PM on April 14, 2014

maintain the status quo until we hear from the District Manager and HR

You can do that better with a lawyer than without. You're giving testimony for crying out loud. Not under oath, to be sure, but in an administrative proceeding that immediately affects your rights.

Lawyer up.
posted by valkyryn at 1:40 PM on April 14, 2014 [2 favorites]

You need to talk to someone knowledgeable about the rights of employees with disabilities. Anxiety is a medical condition, as is anemia, and you should be able to get accommodation. Hard to say from here, but you went in when you were not scheduled, at their request, and maybe they should be a lot nicer about it.
posted by theora55 at 2:24 PM on April 14, 2014

A wise man once said: Consult a local employment attorney immediately. Do not sign anything until you do so.

Seriously. What valkryn said. With extra emphasis on the word "immediately," which specifically means "not after you've been screwed, but before anyone even thinks of trying."
posted by Hylas at 2:37 PM on April 14, 2014 [2 favorites]

1. HR is aware that I have an anxiety disorder, and that I have started taking new meds to deal with my boss. This is a mistake, and I imagine that this will bite me in the ass.

I'm guessing the opposite.

Unlike valkryn, I'm not a lawyer, but--actually, letting HR know beforehand you have an anxiety disorder and have started new medication (that may have precipitated the fainting episode?) seems like that would make it terribly awkward for them to terminate you for (or even appear to terminate you for) an anxiety attack, not to mention one that did not even interfere with the performance of critical duties (i.e. closing up the store). A panic attack for someone with your diagnosis is not "flaking out" or otherwise demonstrating unsuitability in some way. Get a lawyer who knows the rules who can speak for you.
posted by blue suede stockings at 6:39 PM on April 14, 2014 [2 favorites]

I think we're still missing a piece of the puzzle here. You were there on your day off, voluntarily helping out "the store" in a tight spot because of some other guy who couldn't bother to show up? And on top of that, the other person working who was actually scheduled to be there didn't want to close up when you had a medical emergency, so you stayed and did it anyway?

Sounds to me like there shouldn't be an investigation. You should be paid (possibly overtime) for the hours you worked (possibly subtracting the time spent unconscious and dealing with EMTs afterward). End of story.

For your manager or HR to suggest anything else is ludicrous. You weren't scheduled to work, you had exactly zero obligation to be there or to stay.
posted by trivia genius at 7:02 PM on April 14, 2014

A panic attack for someone with your diagnosis is not "flaking out" or otherwise demonstrating unsuitability in some way.

See. . . maybe, it is, maybe it isn't. Which is why this:

Get a lawyer who knows the rules who can speak for you.

. . . is desperately important.
posted by valkyryn at 1:17 AM on April 15, 2014 [1 favorite]

One thing you can do for free is to put together a concise narrative that explains everything with a single root cause, so that when they ask why you've had so many problems in the year you've been there, you have a quick and understandable explanation, with the cause identified so that they feel confident that the number of incidents will be decreasing.

You passed out at work, you need lots of rest, you have an anxiety disorder that you've notified HR about (presumably you had an attack at work?), you had an emergency doctor visit for pain and blood in your urine, and you've come in late because of another ER visit that resulted in blood splatter on your pants. ER notes and requests for time off are now missing. And although you are willing to put in the hours, you're not getting along with the manager and he's been reporting you up the chain. It just doesn't look good, and you need a way for people to understand this chain of events.

You need one root cause for these things (and the root cause can't really be "I work with assholes" even when yes, you do). For example, "I've been having problems with an anxiety disorder. As a result of the anxiety attacks, I wasn't sleeping well which made me irritable and clumsy. That obviously couldn't continue, so I returned to the doctor and he prescribed Clonazepam. Getting the dosage just right is tricky -- take too much, and you can pass out. Take too little, and it's not effective. Obviously I was worried when I passed out at work, and even though I stayed to close the store I did later return to the doctor to get a change to my medication. I'm very hopeful that the medical problem is being resolved."

That's just an example, and I don't know your whole story of course. But get a narrative together and really run it through your head so you can spit it out easily and without too much elaboration. Use the narrative when talking to your managers. If you get fired, use it to collect your unemployment, and use it to get the next job. And start looking for that next job now, regardless of whether or not they fire you this week.
posted by Houstonian at 2:17 PM on April 15, 2014

Response by poster: I am not worried about HR using a "your anxiety is a bullshit excuse to get out of work" angle. I have a documented reputation for covering other members of the management team, including the store manager on the days that he didn't feel like coming in. I've also had to work overtime whenever he went on vacation (once every other month), and never attempted to get out of a shift. I've called out twice in 12 months: once immediately after a severe anxiety attack (with a full 24 hr's notice), and again when I crushed my finger.

If HR decides to go with a "the public confrontation proves that you're too much trouble to deal with" approach, then I have no argument. There's no reason I couldn't have tried to take that discussion into the office, which I SHOULD have done instead of let it unfold anywhere else.

For those who mentioned acquiring a lawyer: I don't even have the money to get a rotting tooth removed. I will see if my income precludes me from the use of the Legal Aid Society's lawyers. Drawing a narrative will be easy. "I was diagnosed with an anxiety disorder and [two other conditions, which I did not mention, one of which developed a year ago]. I am closer to an optimal treatment strategy now." If I can see an LSA lawyer, I'll ask if I can use my boss' creation of a hostile work environment (through gendered favoritism, sexism, and racism) as an argument for why my anxiety attacks stopped being manageable. Because I only ever experience the nastier of them while at work OR right before it.

I'll mark the post as resolved, and post an update by the week's end. I'll keep checking here in case this update has caused your answers to change.
posted by Ashen at 3:34 PM on April 15, 2014

For those who mentioned acquiring a lawyer: I don't even have the money to get a rotting tooth removed.

I think you'll find that legal aid isn't going to be very much help for a very good reason: there are plenty of employee-side employment attorneys, and you can afford them! How? Because most employee-side employment attorneys work on a contingency basis, i.e., they are paid by recoveries from settlements and judgment, not directly by clients. Some employment actions have fee-shifting provisions where the employer winds up paying the attorney's fee anyway. So finding one that won't require any money from you shouldn't be all that hard. Almost all of them offer free consultations if nothing else.

They probably won't want to take you on as a client until your employer actually does something wrong, but most of them will be happy to sit down with you for half an hour or so to go over your paperwork and options. That way if something does go pear-shaped you'll call them first. It's how they get clients.

I say again: lawyer up. Not only can you afford it, you can't afford not to. Hit the phone book and start calling around. Or check for attorneys in your area. Anyone in your county and probably even neighboring counties will probably be willing to talk to you.
posted by valkyryn at 5:06 AM on April 16, 2014 [3 favorites]

Response by poster: Update: Still waiting on them to deliver a verdict. If this is an investigation on me equal in depth to the investigation I participated in, then it will take them weeks before they actually act. I'm definitely going to lawyer up before HR comes down to speak to me.
posted by Ashen at 5:20 PM on April 20, 2014

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