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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11878
Experience:  Significant experience in all areas of employment law.
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My dear coworker had a very difficult time several months ago

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My dear coworker had a very difficult time several months ago finding out that his daughter who he had allowed the mother to raise with her new husband from the time his child was very young, had been deserved by the parents with the grandparents. Unbeknownst to him the child is autistic. Upon finding out about the situation and trying to get his child back to take care of her, he ended up going on a leave of absence from work as a Respiratory Therapist. During this leave, prior to getting his daughter back, he was very depressed and apparently got very intoxicated (alcohol/drugs) and was hospitalized at another hospital. This was reported to the police who filed criminal charges which were dropped. The Respiratory Care Board also filed a suit. This suit was finally settled and the Resp Care Board issued 12 days suspension and 3 years probation of his license. The hospital that employs him is not threatening to fire him unless he resigns. Would this be wrongful termination? He was not working. He was on leave. The criminal case was dropped. His license is still valid?
Good evening and thank you for entrusting me to answer your question. This is an unfortunate situation and your co-worker has my sincerest sympathy.

Is your coworker part of a union and is his employment governed by a collective bargaining agreement? Also, can you perhaps rephrase what you said here: " The hospital that employs him is not threatening to fire him unless he resigns." I don't think I quite follow what you are saying.

I very much look forward to helping you on this matter.
Customer: replied 3 years ago.

Sorry. I was typing too fast. Yes, he belongs to a union. He is contacting them for additional guidance. The VP of Human Resources has put him on suspension. He spoke to him today and was very forceful in saying that my friend should resign because his employment will most likely be terminated and it would be better to not have that on his record. Before he agrees to resign, I am just trying to understand whether he would be wrongfully terminated. He is an exceptional therapist, adored by the patients and his coworkers. This was a very unusual event.

Customer: replied 3 years ago.

Yes. He belongs to a union and is seeking their assistance.


 


The VP of Human Resources called and threatened to terminate his employment if he didn't resign. A meeting is being scheduled.


 


My friend has been suspended from working while this is being worked out.

Thank you very much for your reply.

Generally speaking, employment in the state of California is presumed to be "at will" absent an express agreement to the contrary. "At will" employment can be terminated for virtually any non-discriminatory reason, regardless of whether the basis is fair or reasonable, so termination in a purely "at will" scenario would not violate any law under the circumstances you describe, despite the fact that this incident occurred off the clock and your co-worker's license remains in tact.

However, you indicate that your co-worker is a union member. This potentially changes things, as most unions have collective bargaining agreements which permit termination only for "cause." Whether "cause" exists in the present instance requires a factual determination and is subject to some opinion.

The employer might argue that "cause" exists because the incident in question reflects poor judgment and impulsive behavior that could spill over into your co-worker's work. Indeed, the licensing authority saw it as necessary to put your co-worker on probationary status for three years, so they obviously believed the incident had some relation to his ability to competently perform as a therapist. On the other hand, your co-worker's license remains in tact, the incident was "off-duty," and there are significant mitigating circumstances. These are the considerations which must be weighed in determining whether good cause would exist for termination--and again, this assumes that your co-worker's union contract requires his employer to show good cause for termination. If it doesn't, then the doctrine of "at will" employment governs.

If your co-worker refuses to resign (which he should not do if he has any desire to collect unemployment, as resigning typically results in a disqualification from UE benefits) and he is terminated, the next step would be to file a grievance challenging that termination was with adequate cause. Through the grievance process with your co-worker's union rep, he may be able to obtain reinstatement.

These are the options and considerations that should be taken into account under the circumstances you describe.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you.

Very best wishes to you and thank you so much for coming to Just Answer.
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