Wrongful Firing Blog by Gilpin Law Firm

Facebook & Wrongful Firing

Tue, 08 May 2012 16:30:41 -0500

Should you "post" about your wrongful firing on Facebook or any social network after it happens? "NO", don't do it. In any lawsuit, especially one involving an injury or firing, it's now standard practice for the other side to discover your Facebook and other social network postings, including photos. Why? Because your statements, admissions and photos that occurred at the time of or after the incident are fair game to prove: 1) what you are saying, thinking and describing about the matter when made to third persons other than your attorney (whether on-line or off) and 2) what you are able to do after an incident is relevant to show your state of mind and physical ability, i.e., you sure don't look injured on those water skis, do you? Oklahoma Courts regularly grant access to Facebook and other social network accounts and postings after an injury or wrongful termination suit is filed, even if your privacy settings are set for "friends" only. Remember, statements to third persons, not your attorney, are fair game, on-line or off line. It's best to keep your statements (and photos) off social networks if your are involved in an injury or wrongful termination case. Otherwise, you might have a lot of explaining to do about those fun photos or contrary remarks you posted.

Fired & Emotional Damages

Tue, 01 May 2012 13:30:42 -0500

Can you get emotional damages in a wrongful firing court case? "Yes" you can. Both the statutory and case law on wrongful termination recognize and allow a wronged employee to recover emotional damages (mental anguish or suffering). But, the fired employee needs proof of his/her damages or suffering. A job loss is a very stressful event that impacts both the fired worker and his/her family. In a wrongful termination, a plaintiff who suffers depression, anxiety and/or related physical ailments such as sleep loss, weight loss or gain, loss of hair, loss of appetite, headache, stomach ache, vomiting, etc., proves his/her mental suffering through their own testimony, the testimony of their family and friends and the testimony (and records) of medical, psychological and/or religious care and counseling professionals related to the job loss and suffering.

Arbitration & Wrongful Firing

Fri, 20 Apr 2012 15:02:02 -0500

Can you be forced to "arbitrate" a dispute with an employer who wrongly fired you? Arbitration is a process outside of the Courts wherein a third paid person decides a dispute between the parties. It comes into use when the parties agree to arbitrate or when there is a prior contract that binds the parties to "arbitrate" their disputes. In the past, arbitration agreements existed mainly in business contracts. But, recently more and more employers have sat their prospective employees down during the hiring process (or afterwards) and required him/her to sign Arbitration Contracts as a "condition" of employment and/or Non-Compete Agreements with arbitration clauses. Sound fair? Not really. Typically, it's what is best for the employer, not the employee. Why? Because if you are wrongfully terminated in violation of a public policy (race, sex, pregnancy, age, disability, workers comp claim, etc.,) the Court system is set up to be fair and deliver a just result under the laws, not based upon who holds the most money or power. In Arbitration, often, the employer picks the arbitrator (the person who decides your dispute). And, the employer has the economic advantage to pick a professional arbitrator it believes will favor its position. Also, an arbitration process can only mimic your rights in the Court system, it cannot realistically or practically give a wronged individual the same process, discovery or rights to a full and fair resolution as the Courts do. In arbitration, one person (or maybe 2 or 3) is hired, usually by the employer, to decide your fate and they are typically paid by the employer. Why? Because arbitration agreements can spell out who picks and pays an arbitrator and a fired employee normally doesn't have the money to pay anyone extra money, and certainly not a professional arbitrator. The Court system is already paid for by our taxes. A Judge by design cannot be associated with either party to the dispute, his/her job is to keep the parties honest, apply the laws evenly; and, a judge is subject to an appeal. Then, a jury of your peers decides the ultimate findings, i.e., 12 people who again do not know you or the employer and have no connection to either party. It's tough to get out of an Arbitration Agreement, but it can be done. Often, an employee has no idea what he/she is signing and is not in a position to bargain at the point of employment or during employment. It's just not a mutually fair and equitable position to be in. The best policy is to look closely at the documents an employer puts in front of you and refuse to sign any Arbitration or Non-Compete agreement. It might seem okay at the time, but why sign away your rights, who can that benefit?

Workers' Comp & Job Loss

Tue, 20 Mar 2012 09:51:34 -0500

Can I lose my job when I file for Workers' Compensation? Under Oklahoma law you cannot be fired just because you had a work injury, sought medical care for the on-the-job injury, sought legal advise for a job injury claim and/or filed a claim under Worker's Compensation. Also, if you suffer a work injury, then a physician takes you off work to heal or recuperate (making you temporarily totally disabled) your employer cannot fire you for being absent from work. The law protects an employee with a legitimate work injury when reporting the injury, seeking care for it, getting legal advise about the injury and claim and filing a claim. You are also protected while off work recuperating under a doctor's instructions.

FMLA and Doctor's Note

Tue, 28 Feb 2012 15:17:31 -0500

Do I need my doctor's records to take FMLA? If it's an emergency, the answer is "no", not a first. But, if the medical leave is planned (for a personal illness or injury, or that of an immediate family member, or the birth or adoption of a child) and is to be taken under the Family Medical Leave Act, then your medical records and some forms for your doctor to fill out are ordinarily required by an employer. If your medical leave is an emergency, then you should be able to provide the medical records and forms filled out by your doctor soon after you are physically able to do so. It is not unusual for an employer to require some medical documentation showing that the leave is necessary and what it is for.

Same Job upon return from Medical Leave?

Thu, 09 Feb 2012 13:13:16 -0500

Do I get my old job back when I return from Family Medical Leave (FMLA)? The answer is "yes". If you qualify for Family Medical Leave (FMLA) [see previous blog entries], then the federal law allows you up to twelve (12) weeks of unpaid leave. This leave can be taken all at once or in increments. When you return to that same employer, you are due your old job back (or an equivalent job) at the same rate of pay, seniority and benefits as when you took off on the family medical leave.

Remedies under Family Medical Leave Act

Tue, 03 Jan 2012 12:12:10 -0500

What are my remedies under the Family Medical Leave Act (FMLA)? There are a variety of remedies provided under the FMLA. If you are fired because you took work leave under FMLA, (assuming you and your employer fall under the Act's qualifying provisions) then you could go to Court and seek one or more of the following: your old job back (reinstatement); Back Pay (your pay from the time of firing until finding in your favor); Front Pay (pay from the time of successful finding in your favor until a reasonable date in the future when you obtained or could have obtained future employment); Emotional Damages (your mental suffering associated with the job loss and it's consequences); and, possibly Punitive Damages (a monetary award to punish the offending employer to set an example for others).

Family Medical Leave

Sat, 27 Feb 2010 00:00:00 -0500

You have to take time off work due to your own serious medical condition, or the serious medical condition of a spouse, parent or child or because you've just had a baby or adopted a child. Will the law help you keep your job? Answer: it depends. If you qualify, under the Family Medical Leave Act, FMLA, an “eligible” employee is entitled up to twelve (12) workweeks of unpaid leave due to a serious health condition that renders the employee unable to perform his/her job functions, the serious health condition of a spouse, parent, child, birth of a child or adoption of a child. You should tell your employer right away if such a problem exists. The law requires 30 days notice to an employer, unless the condition necessitating the leave is immediate, i.e., an emergency and you can't help it. An employee is not required to identify the leave as "FMLA leave". However, an employer is required to identify and record the leave as FMLA leave. It is unlawful for an employer to interfere with, restrain or deny the exercise of or attempt to exercise any right protected under FMLA. And, if an employer interferes with the FMLA-created rights to medial leave or to reinstatement following the leave, a deprivation of this right is a violation regardless of the employer’s intent.

But, what's an “eligible” employee under FMLA? There are several requirements to fall under FMLA protection and we will only briefly touch upon one such requirement. Basically, an “eligible” employee under FMLA must be actively with an employer for twelve (12) months before the medical leave. But what if, like a lot of people in this economy, you were with the employer partially through a temporary employment agency, then hired on permanently? And, all of your time with that employer is at or near the 12 months of active work FMLA required time period. Courts have found that an employee’s time period with a temporary employment agency, working on the permanent employer’s site and under its general control, counts toward fulfilling the time period relevant to an “eligible” employee. This is not an easy situation and the law is stocked with pitfalls. These are only the basics of FMLA law. There is lots more to know and more that might apply to your situation and facts. Consult an experienced attorney for a complete picture and advise.

Public Policy Versus Employment at Will

Thu, 04 Feb 2010 11:21:56 -0500

Oklahoma is what's referred to as an "employment at will" state. Without a written employment contract (or union agreement), you can be fired for almost any reason - unless that reason violates a "Public Policy". But, what is a Public Policy violation? There are several. One that stands out is being fired because you were injured on-the-job and: 1) your employer is worried you might file a Workers' Compensation claim; or, 2) you are fired because you did file a Workers' Compensation claim; or, 3) you were fired because you saw a doctor for a work injury; or, 4) you were fired because you consulted an attorney about a work injury. In addition, you should not be fired while your doctor has you off work recuperating from a work injury, i.e., while Temporarily Totally Disabled. (unless your company downsized and eliminated your position altogether). There are other Public Policy exceptions to the general "employment at will" status in Oklahoma, such as being fired due to your sex, race or pregnancy or if your employer fired you (retaliated) against you because you complained of work place harassment or discrimination on one of those grounds. But, there is more and the facts and situations get complicated fast, different laws and different time limitations apply to varying facts. Contact an attorney experienced in wrongful termination law if you think you were fired and it might violate a Public Policy.