Expert: Timmy Chou - 1/30/2011

Question
My husband ,Brian-36, has worked for a glass company for almost 3 yrs now. We had a trip planned to go to Atlanta to see my newborn niece Jan 15th thru Jan 17th. Brian has off work every other Tuesday, so the week before our trip, he asked his direct boss(David)if he could have off work on Monday the 17th instead of Tuesday the 18th. David said yes. The day before we left (Friday the 14th) He asked again to make sure he was off and mostly as just as a reminder to David because there are always mix ups at his workplace. David said someone else was going to be off the entire week so he "didnt see it happening". David was on the computer and was real busy...he paused a minute and said "ok". Brian said "ok" and went to finish his last job for the day. Brian took what his boss said as it was "ok" to be off on the 17th. We went on our trip and returned on Monday the 17th as planned. Brian went to work the next day. When he arrived, David told him he was being put on administrative leave for not showing up to work the previous day. When he said he was given permission to be off, David denied telling him he was given permission to be off. Apparently David meant their conversation was over when he said "ok". David told him they would call him. David took Brian's phone and his vehicle and he was stranded 45 minutes from home. I had to leave work to go get him. My husband was very upset and angry, but mostly hurt by what had happened. He went back 2 days later (Thursday the 20th) to ask when he could come back to work. David said that the general manager was on vacation and that he would have to speak with him before he could tell him anything. On the next Monday,David called Brian and asked if he could come back to work the next day(Tuesday). Brian told him he was having to keep our baby because our babysitter's father died and was not keeping children Monday or Tuesday. Brian told him he could come back on Wednesday. David said he was off that day and wanted to be there when Brian came back so he told him to just come in on Thursday. Brian said it was strange because his boss was very nice. He is normally ill mannered. He told Brian he would have his position back and work vehicle. Two days later (Wednesday) his General Manager called him and told him "After talking with David, we feel it's in *company name*'s best interest that we just part ways.". He gave no explanation as to why they said he could come back 2 days before. To me, he made it sound like Brian was in someway harming their company. This company is a large chain. The place he works for is really shady...lots of drugs going on...David participates as well..and an affair going on between the General manager and a secretary. David curses the employees on a regular basis. Brian doesn't fit in with their "way" of living...so he hasnt really fit in there but works hard. In the past 3 yrs, he has only taken off a few times for being sick and a few times to keep the baby. He was written up once for his numbers not being high enough but so were all the other workers too. He has been late on occasion but never written up. He has worked overtime when given the chance. We have 5 children and live in Mississippi. This is a very stressful situation and we are trying to deal with it in the best way. What advice can you give us on how to handle this regarding the way his boss and general manager handled this situation and also unemployment?  Thanks so much, Jamie

Answer
Thank you for your question!

As I always note to questioners, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.

The case you describe here is unfortunately very typical.  I am not an attorney and cannot give you legal advice, nor can I cannot mediate this with you alone but I can respond to your question from my business consulting experience.

Note that this situation may have legal ramifications and you may wish to consult a labor attorney.

I often tell people that it may be useful to consider that right and wrong are not always the most useful places to begin in dealing with these sorts of problems.  For most large organizations there is only expedient and inexpedient.  Also, there is a cost to exacting justice and the costs can be quite high.  Remember that your person-hood and your work are not even remotely related and that the most successful people at work are often the least successful with others since they have often become successful on the bodies of those they have slain.

You are dealing with authority figures who are only interested in their own success or the path of least resistance in terms of how they manage the business.  I'm guessing they could care less about your husband so don't put too much investment in their position.  He was terminated for "so called" business reasons and now you must create a business reason for the company to deal fairly with he and you.

Please begin by documenting a very careful chronology of events as they have occurred.  Names, dates and locations.  Put things in writing at this point paying careful attention to any evidences of good work or recognition over your husband's career there.  In many states you can be fired for just about any reason without a problem.  These are known as "right to work" states.  However, you cannot be treated differently than other workers nor can established HR policies or procedures be violated without consequence, nor can people lie about you without recourse.

Please request a written copy of the HR policies and procedures.  If the local level management will not supply it, escalate the matter to the regional level or corporate level.  Make sure you get a specific copy of the disciplinary procedures and the grievance procedures.  Also ask in writing for a written explanation of the detailed reasons for your termination. Place your requests in writing and send them certified.  This will notice up the company that they have awakened a potentially serious problem and this will not please the corporate folks.  

Many states have Employment Commissions or other employment offices where you can file a complaint for free.  You should contact them right away and file a complaint if you believe the termination was warrantless.  You may also be able to file a complaint with the US Dept of Labor.  Find their offices and file a complaint. Do not delay as there are time frames to meet in order to get the maximum leverage.

You will want to send a demand letter to the company demanding a hearing or reinstatement if after reviewing the facts and the company's compliance with procedure you think it is prudent.  Be sure to send copies of your demand letter and any other correspondence to the DOL and the state office.  You might even want to contact the press or TV media and publicize the behavior.  Too, often there are trade association or licensing bodies that you may want to send copies of your correspondence as sometimes they take a dim view of shoddy HR practices and you can increase your leverage by noticing them up.

Once you have the documentation you can look for policy violations and begin the process with the state or DOL.  You can also potentially begin an action against them for slander, libel and/or harassment, if it is warranted.

Your company must see that it will cost a lot more to deal with all the problems you will cause them for their practices and then they will make a business decision and settle fairly with you or reinstate your husband.  Be cool, calm and professional, but be sure that they know you are serious as a heart attack and have every intention of seeking either reinstatement or an apology or compensation for unproven slanderous and damaging material in your work record.

These are some ideas.  Feel free to follow up with additional questions.

For your information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships

Negatives of Arbitration

It's a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

may not reach a binding decision
unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final

Negatives of Litigation:

waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record