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Question

I was fired from the State of Connectiuct, Dept. of Revenue Services (DRS), after 21 years of service and having always recieved excellent or good service ratings. I was fired when the supervisor I reported to was changed and then I received two fair ratings. The state considered this grounds for termination. I have just won my arbitration case but now DRS is saying the only place they can reinstate is in my old position. I have asked for years to be transfered to another unit and even agreed to take a demotion just to get out of that unit. I know there were other positions like mine being filled during my transfer request but was always told nothing was available. Human resources stated I am an unpopular employee and no other unit will agree to take me. This is untrue. This has been a night mare. Should I hire an attorney? My union rep says he believes the whole situation warrants an unfair labor practice. Thank you.

Submitted: 299 days and 9 hours ago.
Category: Employment Law
Value: $30
Status: CLOSED
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Accepted Answer

I have good and bad news. The bad news is that the state's treatment of you is unlikely to constitute an unfair labor practice under the National Labor Relations Act, since that pertains to union organizing and activities and not individual decisions. The good news is that your union should have a grievance procedure that you can go through with a representative in order to work out an agreement and get you reassigned. If the employer were to refuse and this constituted a breach of the contract between the Department and your union, then the union could file an unfair labor practice, but that would still be unlikely to help you in the immediate future.

Another option is to file suit against your employer for failing to provide you with a reasonable accomodation, which is allowed for in your bargaining agreement and was decided by the arbitrator. If the arbitrator's ruling is unclear (which is what the company is likely to argue), then you would have to bring suit in order to get the arbitration agreement enforced. The good thing is that you should have employment protection from your union and that they should have procedures in place to put you in another similar position. I would ask your representative to contact your employer to reinform them of their obligations under the collective bargaining unit, and that their failure to comply with the arbitrator's ruling would constitute a breach of your employment agreement, the collective bargaining agreement, and the union's collective bargaining unit. I would try going through this procedure and seeing if the union can either obtain you the transfer request to which you're entitled, and if not, if they're willing to file suit against the employer on your behalf, assuming the employer's actions of not accomodating you are in violation of the terms of the collective bargaining agreement, which they most likely are. If neither of these options are successful, I would consider hiring an employment attorney, but only on a contingency basis, so you don't have to pay him anything until you collect from your employer. Additionally, your collective bargaining agreement should provide you with protection against being discriminated against for filing a complaint or trying to get the arbitrator's decision enforced, and if the employer fails to comply with it they can be found to be in breach of contract and to have violated the collective bargaining agreement. Also, again, you would first want to go through your union's representative before getting your own legal representation to minimize costs. I hope this information is helpful. It definitely seems like an extremely trying ordeal. Good luck with everything.

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Expert: Cedric Severino
Pos. Feedback: 100.0 %
Accepts: 
Answered: 1/28/2009

Employment Lawyer

Editor of Employment Law Newsletter at OMM; USC Law Review; Many Awards in Employment Law

298 days and 9 hours ago.

Reply

Thank you so much for your informative and well thought out reply. If you do not mind I would like to ask a couple of other questions. Please let me know if you will need additional funds. I was told that my back pay from the state will be set off by earnings received during the wrongful termination period? Is this true and if it is true under what legal authority? Thank you.

Posted by Cedric Severino 298 days and 8 hours ago.

Answer

<p>(Bonuses are always appreciated ; but not necessary or obligatory).</p><p> </p><p>   More than happy to help. The reason why they can off set your back pay with the earnings you received during that period is due to the common law remedies for breach of contract actions, in which the goal is to make the individual 'whole' but to avoid windfalls. The reasoning would be that since you are receiving the wages you would have received had you not been wrongfully terminated that is offset by the earnings that you did receive. (That you wouldn't have otherwise received had you not been wrongfully terminated). It's kind of a strange principle and seems a little counterintuitive when applied to employment. The principle is called opportunity costs, for instance if I had a contract to buy a car that was broken by the car dealer and bought the same car for a higher price as a result, I would only get the difference between what I paid for the new car and what I would have paid, which restores me to the position I would've been in had the contract been honored, as it should have been.</p><p> </p><p>I hope that helps explain things (and not confuse them). Thank you for the feedback!</p>

Accepted Answer

It's odd, but the person who doesn't breach the contract is still supossed to mitigate the damages. In your case, getting another job, so making you whole is only to give you that difference but PLUS the expenses you incurred in obtaining your back pay, since you would not have had to make them had the wrongful termination not occured. (E.g., payments for legal advice, paperwork, etc.)

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Expert: Cedric Severino
Pos. Feedback: 100.0 %
Accepts: 
Answered: 1/29/2009

Employment Lawyer

Editor of Employment Law Newsletter at OMM; USC Law Review; Many Awards in Employment Law

297 days and 14 hours ago.

Reply

Thank you for your answer and your kind words. After suffering through this ordeal, acts of kindness are very much appreciated.

262 days and 9 hours ago.

Reply

I want to thank you for your previous advise and thank you in advance for additional advise.

 

I have recently won my arbitration against the state of CT. My question is what expenses is the state responible for? Are they responsible for an early withdrawal penalty? When they talk about being made whole, does that include my credit ratinig?

 

Thank you - your support has made me believe that equity is an actual word.

Accepted Answer

Thank you! Really happy to help and know I'm making a positive difference!

They very well could be responsible for your early withdrawl penalty, as long as it's causually connected to your wrongful termination, which it definitely seems to be. Had you not needed to withdraw the money, you wouldn't have had to pay the penalty, so there's defintiely an argument to be made that you should receive this money back (whether in tax refund form or directly from the state).

The credit ratings are all done by private companies, so it's hard to hold the government responsible, except you can write the companies and tell them why your credit rating suffered and that you're now entitled to its rehabilitation. I would contact them individually (the main 3 ones: Equifax, Experian & TransUnion) (you can do so over the internet) and explain the situation to them and why any negative items that were put on your record due to the wrongful termination need to be taken off. You can tell them to contact the government or provide them with proof of the judgment for support, but as far as I know, it's in their discretion. (I was successful in getting something similar removed from all my reports though).

Sorry, I don't have exact answers...but if the law were that well defined, half of lawyers would be out of work and have to find more productive things to do. Basically, I would advise to argue that they were all a result of your wrongful termination and that therefore you deserve to receive money to offset those damages. (Just as you would try to maximize your deductions on your taxes). If they reject your claims, you could always appeal their interpretation, as your interpretation is definitely plausible.

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Expert: Cedric Severino
Pos. Feedback: 100.0 %
Accepts: 
Answered: 3/6/2009

Employment Lawyer

Editor of Employment Law Newsletter at OMM; USC Law Review; Many Awards in Employment Law

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