Posted By Charles J. Cochran, Jr. on July 16, 2009
Unless you can look at the particular circumstances and clearly understand the reasons for your termination you are probably wondering why you lost your job. In many instances your job and what you do helped to define you as they make up a substantial amount of your life and the job provides you a means to survive. I provide my observations in this Article and the others which I write to describe some of the processes which might go on in the background at the time of a Termination and make a person more aware of their circumstances. It is not offered as legal advice and I recommend that individuals seek legal counsel where they suspect their termination might violate Federal or State Law. These matters are so fact specific that any action which you take without the specific advice of an attorney which you personally hire to represent you are taken at your own peril. However, with that warning in place I would see little harm in preserving all of the evidence in the best form possible.
Whatever the employer’s reason for terminating you it is important that you get that reason or reasons right at the time of the first notice of the separation, and get it in writing if at all possible, so that you may attempt to tie the employer’s hands and establish the reason(s) when all of the circumstances are fresh. While this appears to be common sense it is often difficult for an employee to ask for this type of complete confirmation at the time of the termination because so much is going on. You are hurt, frightened and many times feel betrayed by the employer and this situation is one where you probably wish to get away from it as soon as possible. You may wish to take the time to get this information for a number of reasons, immediately, so that you or anyone else may review the situation when it first occurred.
If you wait until later and ask this question then you are inviting the employer to obtain the counsel of many other people before making the response to you. What you are looking for is a written reason, at or prior to the time of the termination, from the person who is actually terminating you as to why you are being terminated so that you do not receive a later response, which could be written by the employer’s attorney, as to the reason for termination which may include all potential reasons for the separation instead of just the real reason(s) which formed the basis for the termination. If you give the employer the opportunity to set up all defenses to a termination you might never get the one real reason that you are actually looking for. There is no benefit to you and you will find it very difficult justifying in your mind how you lost a job where every possible reason for your separation is set out in front of you. Further, when you look for new employment it would be best to know exactly why you were separated so that when a new prospective employer looks at your prior work record you may accurately describe the reason for the termination and are not faced with explaining a reason for prior separation which is provided by your prior employer which does not match the reason you thought existed and which may impact your ability to obtain a new job. Secondly, by obtaining the employer’s reasoning at an early date it may make it easier for you to have your attorney review your separation to determine if you were misused in violation of any of the employment laws. Additionally, you may find it necessary to apply for unemployment where if the Employer can establish “just cause”, in many States, for your termination you might find yourself ineligible to draw the benefit. Remember, part of the reason for your termination might be cost savings and any benefit which you may draw will in all probability cost the Employer more money by increased unemployment premium.
You probably got a feeling from the reason given for your termination as to whether the employer is being completely truthful with you. You have the best chance at determining the truth right at the time of termination and get it from the mouth of the person who is actually terminating you, again, in writing if at all possible. If there is going to be any question regarding your termination then it is important to get an attorney involved early on and in fact prior to your actual termination. Many of the mistakes which come back later to haunt someone who was wrongfully terminated occur at the early stages before an attorney becomes involved. If you can obtain a complete copy of your employment file it would be best to do so now so that you can pretty much freeze it’s contents. You really do not want the Employer to add additional documentation to your file later even if they are doing so in good faith. The documents used in determining your termination should exist at the time of the termination as they form the basis for the Employer’s decision. It is much harder for an Employer to defend the basis for a termination where everything is word of mouth and some Employer’s may decide to only set the reasoning to writing when they see a problem has arisen. While this type of documentation makes sense when a problem arises it should be treated as that, not as something created at the time of the termination. This is not to say that all Employer’s take this type of action, but rather, why take the chance.
Many times an Employer will wish to have an exit interview before you leave. In many instances it might be best if you do not become angry and refuse the interview. You may use the exit interview to cooly and calmly get all of the facts of the matter including the basis for the termination as well as the name of the person who has directed your termination. Take careful notes and include all people who were present at this interview as well as what was said. Weigh everything that you are going to say as if it were something which someday might be repeated to support the Employer’s decision. Be very careful about signing anything especially at these last stages and an attorney’s advice could be valuable in this regard. If a personal contract or a Union is involved make sure all terms of the Agreement are met, by both sides, and demand that the Union defend you and your rights. Have a Union representative present at all meetings with the Company including the exit interview. It could make it simpler for a Union to disregard a member if you are not vocal with them in demanding their help. Remember that if you do not follow all of the requirements under either your personal contract or the Union contract you might have substantial difficulty in pursuing any future remedy. If Administrative remedies exist many Courts wish to see you fully exhaust them before you seek help from them and may bar you from seeking relief if you do not. States differ in their requirements under the law so it is best if you know early on what they are and remember there are Federal Employment Laws which might be applicable. You are in a much better position where you require compliance, and do so yourself, than if you are silent and complain later. Again, the need for competent legal counsel to advise you could work in your best interests and is highly advisable.
Yes, economic times are hard and a lot of people are losing their jobs but this fact alone does not mean the reason for your job loss was proper under the law. Take the time and maintain your composure at this most painful time so that any damage which might occur to you is limited to the loss of the job itself and does impact other benefits and did not arise from an unlawful termination. The best time for legal advice is prior to entering the final stages of a termination, not after it’s occurence, as the Attorney may be able to diffuse the entire situation depending upon all of the circumstances rather than just review the circumstances and documents after it has occured. Even if the attorney cannot diffuse the situation you can obtain that specific advice that only an attorney who you personally hire can provide.
Categories: Employment and Labor Law.
Tags: administrative remedy, discrimination, exit interview, labor laws, prospective employer, reason for