Step One to Fighting Back: Understand Employment At-Will
In a previous post, a 52 year old nurse, Lenora, felt sick and distressed about the hostile work environment her new supervisor (and former co-worker) was subjecting Lenora to. The new supervisor and head nurse, Michelle, was acting like a tyrant, but only toward Lenora and not the other nurses. Feeling alone and dreading going into work, Lenora stayed home and called her brother-in-law, a corporate employment lawyer named Curt.
Curt explained that an illegal hostile work environment has to be based on a protected class like race, religion, national origin, gender, disability or age.
Lenora was even more despondent, because she and Michelle were both women, so Lenora doubted the law would protect her. In Lenora’s mind, Michelle was simply “out to get me.”
Don’t Quit Your Job Before You Learn the Exceptions to Employment At-Will
Curt met Lenora for lunch near his downtown office. “So you don’t I should just quit before she fires me?” Lenora said to Curt as she pulled a chair up to their table.
“Not at all,” said Curt. “I’ve been thinking about your situation, and I think you just may be in a protected class. Now you are both women, and nursing is still a predominately female profession, so your gender won’t work. I know you’re 52. How old is this awful person Michelle?”
“She’s in her mid 30’s I’d say. I think she’s 34. This whole Head Nurse title has really gone to her head.”
“Well, how many other nurses are there over 40 years old that Michelle supervises?” said Curt.
“Just me and Clara. Clara’s about to quit though,” said Lenora.
“Why is she about to quit?”
“Because Michelle cut her hours back and gave Clara all nights on every schedule since becoming Head Nurse. Clara needs to be working days so she can watch her grandson at night.”
“Lenora,” said Curt, “has it occured to you that this 30-something boss of yours has a big problem with employees who are older than she is, and that’s why she’s out to get you and Clara?”
“I hadn’t. I just thought she had it in for me. But you’re right. It could be age. But why do we have to diddle around with this protected class business? So what if it’s not illegal, what she is doing is wrong. I’m going to turn her in to human resources.” Lenora smiled to herself at the thought of Michelle getting called into H.R. to explain the reason for her unfair attacks.
“Lenora,” Curt said, “Human Resources will side with Michelle. They will tell you nothing is wrong. They will spin the whole situation around make it about your job performance.”
“That’s impossible,” said Lenora, “what that bitch is doing is so obviously unfair. She’s going to ruin the whole place for everyone. How could they try to make it about me? I do a good job. I always have.”
“It’s good that you’ve always done well there. That will help,” said Curt. “But you have to understand that H.R. is not concerned about making sure that Michelle treats you ‘fair’. The law doesn’t require ‘fair’ and they know that. It may sound strange, but the law doesn’t guarantee that your boss treats you nice, or fair, or even respectful. Michelle can terminate you right now, for any reason she wants, or for no reason at all.”
Learn to Look for Exceptions to Employment At-Will That Can Apply to You
Employment “At Will” Means Employment “At Whim”
“I hate lawyers” said Lenora. “Where do you get this crap?”
“Listen” said Curt, “I know it sounds harsh, but employment at-will is the starting place for all employment law in the United States. It means that an employer can terminate any employee at any time for any reason, even a bad reason or no reason, just so long as it’s not an illegal reason. In other words Michelle could let you go on a whim, and there’s nothing illegal about it. She could let you go for a ridiculous reason like you were one minute on a day there was a major traffic accident right in front of you on the way to work. Or she could fire you because you use the word ‘fabulous’ too much.”
“I hate that word,” said Lenora. “Michelle says it a lot.”
“Yes, well the point is that she could terminate you for any conceivable idiotic reason, or she could just walk up to you and say ‘your fired’ for absolutely no reason at all. And it would be perfectly legal.
“Well that sucks” said Lenora. “And that’s stupid. No one gets fired for no reason at all. There’s always a reason. And it’s usually because the person screwed up or is lazy.”
“Well I agree with you,” said Curt. “But there is an exception to employment at will that makes a bit of sense. And that is, Michelle can’t fire you for an illegal reason. That’s why I brought up age discrimination. Firing someone because of their age is illegal. Age is a protected class that you might be able to use here to protect yourself.”
“So Curt, you are telling me that little bitch Michelle could fire me on a whim, for no reason what so ever, and the law says she is in the right. But if she fires me because I’m older than her, the law says I’m in the right?”
“Right. But listen, I can tell you how to use age to protect yourself. You can fight back against Michelle. You just have to drop the notion that you are going to get her in trouble for being “unfair” and accept that you have to get her in trouble for doing something that looks to outsiders like age discrimination. I have to get back to the office, but we can talk on the phone later if you want. I’ll tell you more about protected classes, the ‘illegal reasons’ for terminating an employee.”
“Okay Curt, let’s talk later. But I still don’t like this. I want to take Michelle on, head on, and get her in trouble for how she’s ruining my career that I’ve worked so hard for.”
“Don’t do it,” said Curt. “Just trust me. You don’t want to take this to H.R. yet. Let me explain protected classes first and then you can really fight back, with the law on YOUR side.
Find Out What Happens Next with Lenora in the third and final part of her story, HERE.
Can You Identify With Lenora?
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