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A.J.
A.J., Employment Lawyer
Category: Employment Law
Satisfied Customers: 4268
Experience:  Licensed to practice law, I have experience in Employment, Appeals, and Landlord/Tenant Law
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I am currently working on a new job which has a 90 probation

Customer Question

I am currently working on a new job which has a 90 probation period for both sides. If the company decided I wasn't right for the job, would this be a firing, or a layoff? And in MA, would I be able to collect unemployment?
Submitted: 11 months ago.
Category: Employment Law
Expert:  A.J. replied 11 months ago.

A.J. :

Hello, and thank you for using Just Answer. My name isXXXXX am an employment law professional and I look forward to answering your question this evening. Give me just a moment to review your question.

A.J. :

Generally, so long as an individual is not let go for "Cause", meaning some violation of a workplace policy or the law, they qualify for unemployment compensation. If an employee is let go just because they are not a good fit for the position, with no specific policy violation or something of that nature, generally being let go, regardless of how they categorize the termination, qualifies an individual for unemployment.

A.J. :

Now, having said that, there are a few more things necessary to qualify, in addition to not be let go for "cause".

A.J. :

In addition, most employees must have earned $3500 and worked for at least 15 weeks in the prior year. This can include multiple employers.

A.J. :

So, in short, what you describe is closer to a "lay-off." However, even if it was called a "firing", so long as it was not for cause, and the individual in question has earned $3500 and worked 15 weeks in the previous year, then the basic elements for unemployment eligibility would have been met.

A.J. :

For your reference, the Massachusetts Department of Labor and Workforce Development has a pretty good FAQ on unemployment eligibility at:

A.J. :

http://www.mass.gov/lwd/unemployment-insur/resources/questions-and-answers/claimants/eligibility.html

A.J. :

Should it become necessary (hopefully it will not!) it would also be worth sitting down in person with an unemployment attorney in person in Massachusetts. At your discretion, you can receive a referral to an attorney through the Mass. State Bar Association at:

A.J. :

http://www.massbar.org/for-the-public/need-a-lawyer

A.J. :

Again, hopefully neither resource will be necessary, but just in case they are websites worth knowing about.

Customer:

Does being retired with a pension count as working? I stopped working as an Oncology RN in order to take care of my Dad who died of cancer a year ago. I'm just getting back into the workforce and am working as a Hospice RN. My manager fears that I will not be able to work fast enough to keep up with the load in this newly established hospice (I am the only rn and have done all of my work with no problem, not late on anything, and picked up a complicated computer program amazingly quickly (their words).

Customer:

p.s. I worked full time for 40 years

A.J. :

I am very sorry to hear about your father, and I commend you for taking time off from working. Unfortunately, however, no, being retired and receiving a pension generally does not qualify as "work", although again, there are exceptions to every rule. Generally, however, the "work" requirement generally means actual work.

Customer:

Thank you, A.J.!! You've been very helpful.

A.J. :

One other thing to keep in mind, if you were to be let go, is if their reason is that you "can't work fast enough" but there is no evidence of that (and it sounds like you are doing well so far), then you could also consider a suit for age discrimination under the Age Discrimination in Employment Act. The ADEA prohibits many employers from discriminating against an employee because of their age.

A.J. :

You are very welcome, and I wish you the best of luck with your new position. Let me know if you have any additional questions. Otherwise, please remember to RATE my answer so that I can receive credit for my work.

A.J., Employment Lawyer
Category: Employment Law
Satisfied Customers: 4268
Experience: Licensed to practice law, I have experience in Employment, Appeals, and Landlord/Tenant Law
A.J. and 5 other Employment Law Specialists are ready to help you

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