You Can't Fire Me I...Oh Wait I Guess You Just Did

You Can't Fire Me I...Oh Wait I Guess You Can

By Phil La Duke

Being an active job seeker I belong to many “job sites” and I receive in the neighborhood of 100 solicitations of “Hi. Philip (a name no one calls me) I was looking at your profile and thought you would be a perfect match for…” The jobs range from Neurosurgeon to bag boy at whole foods to the senior coder. There is so much dross that it is damn near impossible to winnow it down to jobs that I am both interested in and qualified for.? But one job site has an interesting section called “conversations”.? This has piqued my interest because so many of the posters are complaining about being fired.

I have only been fired once in my life. It was from my first job at which I worked after the Dairy Queen closed (often after midnight) and spent around three hours disinfecting the soft scoop machines then running hot soapy water through them, and two cycles of pure hot water to ensure that the machines were not only clean but also that no hint of soap would tarnish the culinary experiences of the customers by making their hot fudge sundaes taste like Tide.? It was my first salaried position and I made the princely sum of $35 a week. $28.28 after taxes—and before anyone opens their gaping maw about how “that was a lot of money back then”; it wasn’t. But since I was underage (I started at 13) and violating virtually every child labor law on the books (plus the free ice cream-like substance—hey I had to taste it to be sure it didn’t taste like soap it was an okay gig all and all.

But when I was 16 my sister asked me to fill in for a vacationing dishwasher and I made more in one shift than a 7-day stint at my main gig I eagerly accepted.? Well, the two-week vacation turned into an extended stay out of state and I was offered the job which I eagerly accepted.? It was late August, and when I tried to quit the Dairy Queen begged me to stay on because it was too late to find some other unsuspecting rube to take the crummy job that I was once so eager to accept.? I did my best to do both jobs but it was exhausting and come September the owner decided to accept my resignation.? The point is I was quasi-fired, I mean, seriously can one be fired from a job they have quit?

At any rate, I was appalled by the lack of knowledge so many workers of all ages have about being fired or firing someone.? One poster stated that he had been convicted of a “minor felony’ when he was in his early twenties and nothing about it.? He worked and was an exemplary employee for two years until his employer found out about his felony conviction and fired him.? Many of the water-headed fellow posters advised him to get a lawyer and that seemed to be supported by everyone.? Dumb move. Omitting information is the same as lying, and if you lie on your résumé, application, or job interview you should expect to probably get fired.

Some of the other posts were even more baffling. One claimed that she was “the best employee” (she claimed that she was doing everyone else’s job) in the company but was fired because she asked for a raise but fired her because of her attitude. Just the tone of the post made me wish I worked with her, what a deeply deluded self-image she had. She too was advised to get a lawyer. I see a strong pattern of what I assume is people leaving out key elements of the story.

I have been working since I was 13 and working multiple jobs since I was 16 and I have been fired and bore witness to firings many many times.? It’s frustrating, because if you are being dismissed from your position, you want, expect, and too often demand a reason. If you are firing someone and they ask why you want to tell the person but doing so only puts you in jeopardy.? I once had to fire a woman who was stealing from the restaurant that I was co-managing.? The manager came to me (I was the assistant manager) and told me that inventory was disappearing every time Peggy and I worked together.? The manager and I were hired about the same time and remain great friends to this day, and she told me that she was absolutely sure it wasn’t me doing the pilfering. She didn’t know what to do because even though she KNEW I wasn’t the guilty party, she couldn’t PROVE that Peggy was the guilty party.? Since the manager lived within walking distance of the restaurant, I suggested that on the next shift that Peggy and I worked alone she would walk to the edge of the property and watch.? The plan worked as the manager watched as Peggy loaded her car with a 10 lb package of hamburger and a 10 lb block of cheese.

The next day, the manager and I confronted Peggy about the thefts (by this time well into felony territory) and gave her a choice: resign immediately and in the letter absolving both of us and the company of any wrong-doing and thus not having a firing on her work history, or we would call the police, have her charged with felony theft and do our best to have her jailed.? She wasn’t happy and had some choice words for us but in the end, she went somewhere else to steal (I’m guessing).

This pattern of letting people resign rather than being fired for cause continued throughout my career and I can only remember a handful of times when people were actually fired.? In those cases, we simply said, “we are exercising the at-will agreement”.? At-will employers are the most common employers in the U.S. and sadly too few workers understand what that means.? Unless you are covered by a job contract (including a collective bargaining agreement) you are probably an at-will employee.? In simple terms, at-will means you don’t need to give notice or a reason for quitting (despite what your employee handbook might claim), and conversely, employers can terminate your employment without giving you any reason or prior notice.

But IF the employer gives you a reason it may be grounds for a civil suit.? If for example, you are the only African American employee and you are fired because “it’s just a bad fit”, you may have grounds for a wrongful discharge suit (not necessarily, remember I am not a lawyer although many job sites seem to think I am).? If you file a lawsuit you have to prove that the law was intentionally broken,? that the employer knew or should have known that the action was illegal, and you must suffer some damages.

So let’s examine this a bit further. You get fired and you suspect that it was illegal—typically because you belong to a protected class—you need to prove that the company engaged in a pattern of biased behavior and that will be tough. Next, the company had to know or should have known, that the behavior was illegal.? This is another case where something seems simple but really isn’t.? If a hot-tempered line manager fires you and the corporation as a whole didn’t know about it and the reason for it, you may find it difficult to bring action. The “or should have known” is tricky both to prove and to defend against. Next, we have damages. You have a legal responsibility (in most cases) to mitigate your losses, so if you are sitting around collecting unemployment instead of working for a job you really aren’t making any effort to mitigate your losses. Similarly, if you start a new job a week later for the same (or more) compensation you really haven’t lost anything.? And if you think you are going to get money for pain and suffering you should know that the test for this is pretty strict.? Watching your child getting mauled to death by a dog is traumatic to the point where it rises to the level of compensable pain and suffering, as is a life-altering injury, but being fired because the boss doesn’t like you isn’t likely to draw the sympathy of a judge. As for punitive damages, in order to collect these you have to prove that the other party either deliberately and maliciously caused you harm or that they were so egregiously negligent that effectively they acted with depraved indifference.? It’s possible that all these conditions exist and you have a good lawyer who can prove this but suing an ex-employer is a long, emotionally draining, and often unsatisfying endeavor even when you emerge victorious you are likely to have some battle scars.