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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15458
Experience:  Employment/Labor Law Litigation
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I have a friend who has been in her current position for 5

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I have a friend who has been in her current position for 5 years. She has a new "boss" who has decided after @ 6 months of working together that "they don't click well together" and asked her to find a position in the company within the next 30 days. She spoke with HR who, at that time told her that noone can "make" her leave. 30 days has passed and this new boss has approached her again, asking her what her status is on finding a new position. My friend stated that she didn't want to find a new job and didn't want to leave. She also asked if her performance hasn't been better. His response was that it was never an issue of her work, they just don't click. Can he truly just make her leave without any reason? She is nervous every day now, worried that she'll get a writeup over some trivial matter just so that he can fire her. What can she do to protect herself?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

 

The real question is whether or not she has an employment contract stating that she can only be terminated for cause. If she doesn't have that sort of contract, she is legally an "at will" employee. That means that she can terminated without cause, without warning. This is the predominant employment status in our country and it doesn't apply in your state.

 

Now, HR previously told her something that sounds a lot more like a personal opinion rather than anything based on actual law. That is probably why they are backing down now, because there simply is not any law to support that position in an "at will" state.

 

The only way that she can really protect herself is if she can establish that the reason this person is singling her out is based on her race, religion, gender, age, disability or FMLA use. Just singling a person out for termination or transfer because you don't "click" with them is, surprisingly, not illegal in this country.

Customer: replied 1 year ago.

I apologize . . .I am a little confused by your response "This is the predominant employment status in our country and it doesn't apply in your state." I understand the meaning of "at will"; are you stating that it does not apply to the state of Illinois. Another thought, our company HQ is in MN. Will MN law then drive the decision. I have watched so many other employees go through the disciplinary drill before being let go which is why I am so surprised to see this activity take place, write up after write up. Others have complaints a mile high and are still employed because "they can't get rid of them" so if we are at will, couldn't they have been let go? She has been with the company for 12+ years without any write up at all.

Expert:  Allen M., Esq. replied 1 year ago.

Yeah, that is confusing. It's an odd typo. It is the predominant employment status in our country and it does apply in your state.

 

MN law is also "at will." In fact, only one state isn't. Regardless, the state that you work in is the state law that applies. A company headquarters doesn't change the employment law that applies to employees. It only changes the corporate law concerning the business itself.

 

There is no law requiring a write up process. Employees can just be let go. Now, many employers have chosen to adopt their own progressive termination process, but that is not dictated by external laws. That is an employer created construct. If they have that progressive policy in writing in an employee handbook, it can take on quasi-contractual power, but very few attorneys are willing to take what would be an "implied contract" claim.

 

So, if the employer has employees with lots of write ups that they are not getting rid of, but are trying to get rid of this person without any write-ups, you can certainly allege some sort of implied contractual basis for keeping here there. This would actually follow with the HR person's comments, because the person obviously believed that there was at least something, somewhere that would keep your friend from being terminated.

 

But all of that is speculation until you find the company policy and have it reviewed by an employment law attorney. Until then, the default position here is that she is "at will" and can be terminated without cause.

Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15458
Experience: Employment/Labor Law Litigation
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