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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15592
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I am a registered nurse in Ohio and I work for a community

Resolved Question:

I am a registered nurse in Ohio and I work for a community mental health agency. I have worked there since 3/21/11. I believe that I will be fired tomorrow and if I am it will not be for legitimate reasons. My supervisor is hostile (toward everyone) and she has created a story that implicates me in delivering medicine to a client late. I had a verbal warning recently (my only one) because I was accused of being negligent by not taking a client to the food pantry on a specific date. I believe that these two incidents will be used by my supervisor to have grounds to fire me.

It may be easy to bring a class action lawsuit against the company since so many employees, former and current, have been the victims of this supervisors hostility. In addition to this the supervisor routinely refers to clients in very derogatory terms and routinely does the same to the prescribing advanced practice nurse at the company. I do believe that there is a case against the supervisor and that employees would be willing to participate in such a case.

More importantly, the company refuses to pay hourly employees overtime. Many employees complain about this.

My questions are:
What should I do tomorrow if I am fired?
Should I contact an attorney regarding my firing and a class action?
Submitted: 1 year ago.
Category: Employment Law
Expert:  wallstreetfighter replied 1 year ago.

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

This is an unfortunate situation,

wallstreetfighter :

you should first send a letter to HR stating that the supervisor has created a toxic work environment and has violated Federal and State overtime laws, for not paying hourly workers overtime.

wallstreetfighter :

Under the law in OH, unless you are a contract or Union employee the employer can terminate you anytime and for any reason, so a class action lawsuit would be difficult,

wallstreetfighter :

if a breach of contract is not found.

wallstreetfighter :

If the actions of the supervisor are due to your race, gender, age or other protected civil right,

wallstreetfighter :

you may have a valid discrimination and hostile work environment lawsuit, and claim.

Customer:

I'm from White Plains, NY originally. Nice to talk to another New Yorker.

Customer:

By "send" do you mean hand deliver? I can do that tomorrow if I get canned. Or should I post it.

wallstreetfighter :

I would email it, or try to get it to the HR in the morning,

Customer:

I'm sure that I cannot show discrimination because I'm in a protected class. I'm male and white. My supervisor is female and white.

wallstreetfighter :

You can also file a wage complaint with the OH state labor board, or sue them for unpaid overtime, which has to be paid to all hourly employees who work over 40 hours per week

wallstreetfighter :

If she treats males different than females you may have a case,

Customer:

I could go in to work early and then send an email. But what if they don't fire me? That would be awkward.

wallstreetfighter :

you should still file a complaint regarding the overtime,

Customer:

She treats everyone poorly and is unpredictable as to her mood. I'm salaried and have no contract. Should the others organize a suit?

Customer:

And what about signing documents? When HR says "sign this" should I?

wallstreetfighter :

they may have an overtime lawsuit, you are limited

Customer:

OK. Let's go back to what I should do. If I go to work tomorrow and email HR with a complaint about a toxic work environment (which is true) will that in some way make it better for me if I get fired?

wallstreetfighter :

if you get fired, you can use that letter against them, if they try to claim you were terminated for misconduct, it may also stop them from terminating you,

Customer:

Okay but once I write that letter, and they don't fire me (assuming they don't), then what can I expect? Retribution? Isolation? Being placed under a microscope? And what form should this letter take? A detailed listing of offenses or a simple statement that my supervisor has created a toxic environment for me and that I would be happy to talk about it? I've never been in this situation.

wallstreetfighter :

At this point, you have no other leverage, you should list clearly the supervisors actions, and mention in your letter if no action takes place to remedy the toxic environment you will explore all legal options.

wallstreetfighter :

The employer will either be worried and take action against the supervisor, or consider you a trouble maker,

wallstreetfighter :

and try to terminate you without you taking any legal action,

wallstreetfighter :

which may to your advantage, as they may offer you a severance,

wallstreetfighter :

They could also, terminate you on the spot, and advise you to take legal action

wallstreetfighter :

Most often if you threaten legal action,

wallstreetfighter :

an employer would try to minimize the potential risk

Customer:

In your experience how does this sort of thing pan out? Won't I be subjected to retribution? Isolation? Being placed under a microscope? And what resources do I have to explore all legal options? I can't afford an attorney unless they agree to take a case with not payment from me until damages are awarded.

wallstreetfighter :

In my experience, the employer would take any legal threat seriously,

wallstreetfighter :

it is possible the supervisor may treat you worse, however if they have already made the decision to terminate the letter may help.

wallstreetfighter :

In terms of legal action, without a Union or any employment contract, the employer can terminate you at anytime,

wallstreetfighter :

so legal action is limited,

wallstreetfighter :

but you can threaten it in a letter,

wallstreetfighter :

if you do not think you will be terminated, you can delay the letter until you feel that a termination is imminent

Customer:

So basically I should send the letter because I feel that termination is imminent. I should threaten legal action but you have not addressed the question of how I'm going to pay for it. Please do.

wallstreetfighter :

you would not pay for legal action.

wallstreetfighter :

you would threaten it, the employer does not know you cannot afford it,

wallstreetfighter :

it is a threat you make so they take the letter seriously,

Customer:

Really? I make 47K a year. They know I pay almost 1K per month in child support.

Customer:

I won't make a threat that I can't back up. Would an attorney take my case for no pay unless damages are awarded? In your experience or in your professional judgement is this likely?

wallstreetfighter :

Not in this case, since you do not a have a discrimination case, or a breach of contract, legal action is limited

wallstreetfighter :

At best you have a defamation case against the supervisor,

wallstreetfighter :

and potentially against the employer, if they give future employers a false or negative reference,

Customer:

anything more? I see a comma not a period.

wallstreetfighter :

no that is it,

wallstreetfighter :

If possible try to have the other employees join in with you as well, and send a letter to HR about the supervisors actions,

Customer:

And I've heard from supervisors that they cannot give references anyway. So really this isn't a legal matter at all. I have no leverage at all. If I send the letter it may help me keep my job but it may also make my work environment worse with HR nit picking to find ways to fire me. I can threaten legal action but it's all bluster since they know I can't pay for it. Let's say I send the letter and they still fire me. Should I sign anything they put in front of me?

wallstreetfighter :

you should not sign anything, unless they provide a severance and allow you to collect unemployment benefits,

wallstreetfighter :

You should not sign anything, it it states you resigned either, as you would be denied unemployment benefits

Customer:

OK now we are getting somewhere. So if I resign I don't get unemployment but if I am fired I can?

wallstreetfighter :

yes, as long as they do not claim you were fired for violating any company policy,

wallstreetfighter :

or other misconduct,

Customer:

I won't sign anything then. If I am asked to sign I will ask for copies of the documents so that I can look at them. They're not going to offer any severance. So there is no reason for me to sign anything, right?

wallstreetfighter :

yes, you have no benefit

Customer:

I cannot get anyone to sign or write a letter tonight. I will have to think about doing anything like that. I will go back to my office tonight and write the letter to the two people in HR. I don't think there is a person in charge. I will do my work tomorrow (in the field) and then come back to the office. Should I just act like nothing has happened?

wallstreetfighter :

yes, act like nothing is going on

Customer:

And what about my clinical notes. Should I remove them from the office? These are my handwritten notes that have been entered into the computer. And what about the couple of days notes not already entered?

wallstreetfighter :

you should keep them they way they are, and make a copy for yourself

Customer:

No way. They get the notes handwritten that are not yet entered into the computer. My other notes may somehow someway be used against me. Don't you think?

wallstreetfighter :

it is possible, and if they are your property you can take them

Customer:

OK, I cannot possibly write down all of the incidents/problems that my supervisor has created for me and others. I have a list with fifteen things. I will have more when I get to the office. Is this a case of more is better?

Customer:

if I get fired I won't sign anything. Should I contact an attorney or are they going ask for a $10k retainer?

wallstreetfighter :

You can consult with an attorney, however a legal fee for a letter should be $250-$500

wallstreetfighter :

you can also sign up for a pre paid legal service where they write letters for free that is $50 a month to sign up for

Customer:

Huh? What letters? I'm writing an email tonight. You mean I can pay to have an atty letterhead threatening letter?

wallstreetfighter :

yes, you can have them write a letter for you as well,

Customer:

But it's just a letter.

Customer:

And again, should I just pile on the examples of my boss' behavior in my email? Or stick to a few?

wallstreetfighter :

You should be detailed and list all the actions of the supervisor

Customer:

OK I'll send the letter. I don't feel I have a choice. Correct me if I'm wrong: The letter may make HR think twice about terminating me if I detail a toxic work environment and "threaten" legal action. I won't sign anything if I am fired. I WILL look for a new job since the situation cannot get better (I don't think) unless this supervisor is out of my life.

Customer:

One question? What would you write to my former employer if you were an atty that I hired?

wallstreetfighter :

I would detail the toxic work environment, and defamatory statements made against you,

Customer:

Okay. Anything else?

wallstreetfighter :

I would mention that you take this matter seriously and will explore all legal actions available,

Customer:

OK thanks. I will do that. Even if I can't pay for it.

wallstreetfighter :

Good luck, and if you have any further questions please do not hesitate to ask.

wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15592
Experience: 14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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