Question: Is it legal to lay off both husband and wife in a family if they are working for the same employer?

Victor
Calgary, Canada

Answer: I have never heard of any law, anywhere, that makes it illegal to do so. Though I am not familiar with the employment and labor laws of Calgary, Canada, I would doubt they have any law making that illegal. Wish I could give you better news. Sorry.

Best, Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

Question: I was laid off from my job. I was called into my boss’s office on Monday morning. In the presence of another manager, I was told, “I have bad news for you: you are being laid off because your job doesn’t exist any more.” Then they sent me an email confirming my layoff.

The next day in my mail was a certified letter from my former boss saying “We accept your resignation.” That is 100% untrue. I would never resign, because my husband passed away 5 months ago, my son is in high school, and I have a mortgage.

I applied for unemployment insurance. I received a letter stating that they want to interview me about the real reason I’m no longer at my employer.

What do I do now?

An Appreciative Blog Reader
Roseville, CA

Answer: I don’t know why your former employer would take the position that you resigned. The most likely reason is to deny you severance payments that may be due you as an employee whose job was eliminated. In all companies I’ve dealt with – and that is probably thousands – severance is not paid to those who resign. The only other reason I can think of would be for your employer to hold down their unemployment insurance premiums, because employers are charged higher unemployment insurance premiums the more they lay people off.

There are four things I think you should do:

1. Contact Your Former Employer: What happened to you might just be the result of a mistake, or a miscommunication; someone might just have checked off the wrong box in error. That sort of thing happens all the time. If such an error is what caused your problem, it should be very easy to remedy, either by your employer contacting Unemployment Insurance officials, or by giving you a letter withdrawing their opposition to your collecting unemployment insurance.

2. If Your Employer Does Not Help, Write to the Employer’s Board of Directors: Just as you have written to me, go online and research who are the members of your employer’s Board of Directors, and write to them: they are the ultimate authority at your employer. Tell each of them that what has happened to you is dishonest, wrong, hurtful to you and your family. Ask for their help in resolving this problem. Make sure, though, you are respectful in all you write or say, because it is critical for your credibility and effectiveness.

3. Prepare Yourself for Your Upcoming Unemployment Interview: Think hard about how you can prove you did not resign, but rather that you were laid off. Make a list of each way you can show you were laid off: emails, possible witnesses, people you told that you were laid off shortly after it happened; even the many reasons you would surely not resign. Get your thoughts organized. Be prepared to share these in the interview that the Unemployment Insurance officials will conduct next week. You might even tell them that you would be happy to go back to your old job.

4. Finally, if You are Denied Unemployment, Ask for an Appeal: Most states provide that if you are turned down for unemployment in the initial screening, you are entitled to a hearing, or mini-trial, in front of an administrative judge, who is usually an attorney trained in these matters. You are entitled to have an attorney represent you at such a hearing, who can help you bring out the truth of what happened.

My experience in unemployment insurance matters is that employees who are truthful, and who take the time to organize their arguments, and who take the time to gather whatever evidence they can, usually prevail in these matters, as I hope you do.

I hope, too, that this has been helpful for you.

Best, Al Sklover

© 2008 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

Question: A friend was terminated as Executive Director of a non-profit organization after 25 years of service. The reason given by the Board of Directors was “lack of funding.” However, in a local newspaper interview, a Board Member said, “We are hoping to fill the Executive Director position very soon.” Also, it is circulating that this same Board Member is taking the job, himself. Another Board member, disturbed by this, told my friend. Besides unfair, is this illegal? I thought I read somewhere that a position eliminated due to budget cuts could not be filled for a full fiscal year.

Loretta, Carmichael, CA

Answer: Two thoughts immediately come to mind: first, did your friend have an employment contract? Since you didn’t mention one, I presume that he or she did not. If there was an employment contract, that would govern the situation. As you probably know, without an employment contract, your friend would be what we call an “at will” employee, capable of being terminated at any time, and for any “permissible” reason. Don’t forget about that word “permissible”; we will come back to it.

Second, are you 100% certain that the Board Member who told your friend that the other Board Member was taking his/her job, was absolutely, positively correct? If you are not so certain, I caution you and your friend to be very careful about what you tell others about this situation. If it is not true that the Board Member is taking his/her job, you could be unnecessarily hurting someone’s reputation by passing on untrue rumors, and could even be sued for it.

Now, assuming (1) your friend had no employment contract, and (2) you are certain of the truth of the report of the Board Member being hired, let’s proceed. Without an employment contract the Board can terminate your friend’s employment for any “permissible” reason. I see no reason to believe that hiring a Board Member is impermissible in the law; in fact, it’s even permissible in the law to fire someone in order to hire someone else you love, even an incompetent son or daughter. I believe that it is unfair, especially after 25 years of service, but permissible under the law. That is, I don’t think they’ve broken any laws.

Incidentally, I know of no law anywhere that requires a job opening due to financial reasons must be left open a full fiscal year. I’ve never heard of such a law, although one might exist.

But let’s now talk about “creative negotiation.” The Board may have violated the organization’s Code of Ethics, or its policies concerning Integrity, or even its Conflict of Interest rules. Most organizations have such internal rules, regulations, policies and Codes of Ethics. Ask your friend to review these carefully. It could be his or her “way out” of this problem. If the Board is violating its own rules, and it is brought to the Board’s attention, at an open meeting, or in writing, that might just get it to reconsider its actions.

And what of the organization’s members, contributors, or supporters . . . don’t they have some say in the way the organization runs itself? Surely after 25 years your friend has friends, supporters, loyal followers, or those who appreciate him or her, and even perhaps some major contributors? If the Board is “pulling one over” on them – which is what one Board Member apparently already believes – they might be appealed to as well. If the Board doesn’t believe it is doing something “wrong,” then why is it not being open, honest and forthright about it? The old saying “The best proof of a crime is the existence of a cover up” may be applicable here.

Hope should never be lost. Every person should “stand up” if he or she thinks “things ain’t right,” and that is what seems to be the case here. At a very minimum, your friend deserves better. I really hope he or she will “negotiate” to a fairer result. And I really hope this is helpful.

Best, Al Sklover

Question: I was put on administrative leave while I was being investigated for “supposed” misconduct. After being harassed and disrespected, I decided to resign from my position effective immediately. I sent an email with my resignation to my supervisor, and asked her to acknowledge her receipt. She did acknowledge receipt by a return email and told me she would contact me to arrange my pick up of my belongings.

Exactly one week after that, my employer called me and told me that he was terminating me “with cause” effective two weeks ago,” that is, one week before I resigned. My question is this: is this legal?

Social Worker in Distress, Boston, MA

Answer: It really all depends on what you mean by “fired.”

From a “legal” perspective, you have asked three different questions: (a) Can an employer FIRE someone who no longer works for the employer? (b) Can an employer TREAT an employee who has resigned as if that employee had been fired? (c) Can an employer be held ACCOUNTABLE for telling someone you were fired?

(a) First, an employer can’t fire someone who no longer works for them. Once an employer receives notice of resignation which is effective immediately, the employment relation no longer exists. Excuse the analogy, but it’s like “killing a person who is already dead”; it’s just not possible, factually or legally.” So the answer to question number 1 is “No.”

(b) Second, for its own purposes, and in its own records, an employer can consider an employee “fired” and not “resigned.” That’s its prerogative. But can that employer deny you your last two week’s pay, or deny you health insurance coverage for that time? The answer to this question is “Probably not”, but this is not definite, or as some say “black and white.” If you are being denied any payment or benefits in this way, I suggest you contact your local State Department of Labor, and/or an experienced local employment attorney.

(c) Third, can an employer be held accountable for telling others you were “fired” when, in fact, you resigned a week earlier? The answer is “Yes,” as that would be factually false, and damaging to your professional reputation, which is your most valuable career asset. I strongly suggest you write a respectful letter to the owner and your supervisor telling them that telling others that you were “fired” would be false and damaging, and that they would be liable to you for any loss of income or reputation. You might be wise to send it by both email and by Fedex.

Sorry to be so long-winded about answering your question, but it’s both a bit complicated, and to my mind quite interesting. I strongly suggest you consult with a local attorney experienced in employment law; if you don’t want to, please consider sending a respectful letter yourself, as indicated above, reminding your former employer that you have rights, you know your rights, and you won’t hesitate to protect them. [Let us know if you need a referral to local attorney.]

Truly hope this alleviates at least some of your distress.

Best, Al Sklover

Question: I was fired from my job 2 weeks ago. I was notified and was constantly being told to call back to see if I was to be given hours. Is this legal?

Bruce, Pennsylvania

Answer: There is no legal requirement to tell someone they’ve been fired. But, if you are on a salary or weekly payroll, and you were available to come in, you are probably due to be paid for those weeks. I would suggest you call the State Labor Department or Labor Board for the state you live in, and ask to file a complaint.

Best, Al Sklover