Wrongful Termination question
May 2, 2007 7:27 PM   Subscribe

Employmet: Wrongful Termination question. A friend of mine was fired today, he was in the hospital due to a stroke that happend on monday, he's approx 27 years old. More details......

(I'm going to try to keep this anonymous for fear of the employer reading this) A friend of mine at work was fired today. Here's the step by step. On monday he suffered a mild stroke at work. He went (was driven) to the hospital. His wife called the next day to give us an update, he's doing better but will be out for quite a while till the Doctors give the ok for him to come back to work. Today he was fired. I find this morally reprehensible, but beside that, is it legal for the employer to fire him due to his unfortunate sudden health issue?

The closest I can find on this issure is here
posted by BillsR100 to Law & Government (15 answers total) 1 user marked this as a favorite
Is this is in Oklahoma, BillsR100? I have some resources for California on deck, as many labor laws tend to be state-based.
posted by phaedon at 7:33 PM on May 2, 2007

Was he tested for drugs at the hospital ? I knew a guy in Texas who was fired for drug use (pot) after a minor auto accident that was in no way related to the drug use. He smoked regularly, but not on the job. Because of the accident, the insurance co. asked for a piss test, which he failed.
posted by lobstah at 7:47 PM on May 2, 2007

Your friend needs to consult a lawyer.

But I think part of the legality hinges on how many employees this particular company has. Many small companies are exempt from certain types of labor laws, because it would be difficult to apply them equitably. If this is a small company, one worker might represent over 10% of the workforce! If that is the case, replacing an employee who cannot work for an extended period is the only reasonable thing for the boss to do, because however bad he may feel about it, he has to get the job done.

I hope your friend recovers quickly in any event.
posted by ilsa at 8:14 PM on May 2, 2007

Go here, the National Employment Lawyers Association. Click on "Find a Lawyer." Call tomorrow. I do this for a living and you need a lawyer.

Do not get any advice from this site.

I'm not your lawyer.
posted by Ironmouth at 9:29 PM on May 2, 2007 [1 favorite]

+1 to "get a lawyer."

You've given so little information and this area of law (in my extremely limited experience) is so nuanced that nothing else you read here will really be worth your time.
posted by toomuchpete at 9:51 PM on May 2, 2007

+2 to get a lawyer. All but two US states have "at will" employment laws, meaning unfortunately, yes, this is a perfectly valid reason to fire a person (it is in NYS at least). You're right, it's absolutely morally reprehensible, but not that they'd fire him, but that it would be legal to do so. But, no one wants to change it, so we'll just keep working more and more hours for less and less pay until they tire of dealing with us and just let us all go for wearing white after labor day.

Sorry to go on a rant, but when I talk to people, they don't believe "at will" can be taken to this level. They only believe it when it happens to them or someone close to them.
posted by Spoonman at 5:58 AM on May 3, 2007

Spoonman is a little mistaken. FMLA prohibits employers from firing employees for taking time off due to serious medical conditions, even in at-will states. But, there is a high employee threshold for FMLA coverage (an employer must employe 50+ employees). I really suggest speaking to an attorney, but he can also call his state labor department and they can give him advice and put him in the right direction. Good luck!
posted by miss meg at 6:53 AM on May 3, 2007

All but two US states have "at will" employment laws, meaning unfortunately, yes, this is a perfectly valid reason to fire a person (it is in NYS at least).

"At will" typically means you don't need a reason to fire somebody. You just do it. However, giving a reason opens yourself open to lawsuits so most employers don't give a reason for precisely that reason. For example, my dad was fried a while ago due to what we perceived as age discrimination and sued. The company never gave a reason, so the onus was us to prove it was age discrimination. My dad lost, but if that company had said it was due to age, my dad would have won (yes, I know age is a different case than being sick, but that point is I wouldn't expect the friend's employer to say they were fired due to illness, but rather fired without a reason so as to cover their own ass). Consequently, in this case, the onus would be on your friend to prove he was fired due to being sick, whereas the company will most likely come up with another reason if brought to court (we're heading a another direction, we were planning on it anyways, poor performance (does he get performance eval?), etc).
posted by jmd82 at 6:58 AM on May 3, 2007 [1 favorite]

nth'ing "get a lawyer immediately".

The layman's definition of "at will" is that you can fire anyone for any reason, or no reason at all, as long as it isn't discriminatory.

The classic phrase is "we no longer require your services".
posted by Ynoxas at 8:16 AM on May 3, 2007

Regarding the FMLA (Family Medical Leave Act) Miss Meg is correct, there have to be at least 50 employees employed within a 75 mile radius, so if a company has fewer than 50 employees, it would not be applicable.

But, further, the employee would have had to have filed/requested FMLA before being protected.

So, if he got sick Monday, missed Tuesday, missed Wednesday, and had not yet filed a FMLA request, then he likely is not protected. (IANAL)

There are also other conditions for the FMLA, such as they must be employed for 12 months (not necessarily continuous) and they must have worked at least 1,250 hours in the last 12 months.

All the more reasons that a lawyer will be needed to sort this out.
posted by Ynoxas at 8:47 AM on May 3, 2007

Lawyer up!
posted by dejah420 at 9:32 AM on May 3, 2007

If you're having trouble finding a lawyer, contact your state's department of employment. They will also be concerned about this matter.
posted by Lyn Never at 10:44 AM on May 3, 2007

Response by poster: Follow up......Thanks everyone for your insights and comments. They help alot. Just so you know, the employer is a LARGE international firm and I have since learned they claim to have fired him for "performance reasons". I am going to help him contact the State Labor Department just to make sure we have covered all the bases. We also have contacted a lawyer friend who has pretty much repeated much of what you guys said above.

Thanks everyone, this has been tough on him and you have helped us help our friend.
posted by BillsR100 at 4:22 PM on May 3, 2007

If it is as straightforward as it appears, oh, get a lawyer.

My Uncle Rich was fired after he told his employers that his knee replacement would keep him out of the office for several weeks. As he tells it, he had a hard time not letting a smile enter his voice during the phone conversation.

They then told him (several weeks and legal letters later) that it was all a big misunderstanding and he was on paid leave til he felt better.

Never did :) Eventually he just switched companies.
posted by codswallop at 6:23 PM on May 3, 2007

Ynoxas - the employee never has to specifically reference FMLA when they request medical leave. They just need to say that they are taking medical leave. Then the burden is on the employer to deny the leave IN WRITING within a reasonable time after the leave request is made. This is a little different in emergency situations because the employee obviously cannot request the leave before hand. The employer has a right to get a note from a doctor and can even require a second and third opinion at the employer's expense. FMLA, like almost all huge federal acts is difficult to understand and apply. There are a lot of issues with coverage - like the 50+ employee requirement, the employee taking leave must work within 75miles of 50+ employees, so even if you work for a huge corporation, if you don't work within 75miles of 50+ employees, then you are not covered. In addition, there is a special test to determine who is an employee and who isn't.
posted by miss meg at 10:26 AM on May 4, 2007 [1 favorite]

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