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Alcohol on the job
Discussion in 'Termination: Firing & Resignation' started by Lele Merri, Mar 21, 2019.
Lele Merri Law Topic Starter New Member
Family member was fired for drinking on the job, we'll call him Fred.
Fred returned to work after being out for about 4 months from a non work related injury. Last night of the 1st work week back, Fred was stressed between work and some home issues and stupidly went out at break and consumed several drinks. Shift supervisor said he smelled alcohol on Fred and called the police to have Fred breathalyzed. Driving limit is .08, Fred was a .10. Fred was driven home by the supervisor.
Next day Fred called the company to see if he was still employed or not (Fred works an overnight shift Monday through Thursday, called on Friday). Company said no decision would be made until Monday. Fred called again Monday and was told they needed one more day to make their decision. Fred called again Tuesday and was told that yes he was still employed but to take that night off and he would need to arrive earlier than usual on Wednesday, we assumed for a disciplinary meeting.
Company called Wednesday and said that "corporate lawyers" said he could no longer be employed. So they called him the day after they said he was still employed to then tell him he was not employed. In MA when you are let go they are supposed to hand you your final check, which they didn't since Fred was told don't come in. We're assuming that he'll be paid as per usual tomorrow.
Does Fred have any options? Can they state he is still employed and then just change their minds?
Lele Merri, Mar 21, 2019
army judge Super Moderator
Lele Merri said: ↑
Does Fred have any options?
Fred appears to have THREE obvious choices.
The most important one would be to seek treatment for his alcohol addiction.
The second might be to apply for unemployment insurance.
The third follows, once Fred has his predilection for alcohol licked, he might then seek new employment.
Summer has arrived!
army judge, Mar 21, 2019
hrforme and Disabled Vet like this.
army judge said: ↑
Fred actually has no history of behavior like this prior to this incident, which is why he even has himself baffled. A stupid moment of lapse in judgement impulse buying when he went to the convenience store on his break to grab something to eat. He's looking in to unemployment and has applied already for a couple of jobs. The point of the story was the employer told him he was still employed, then changed their mind 24 hours later. They left him in limbo for 2 days, told him on day 3 he still had his job, then on day 4 said he was terminated. They also did not, in accordance with MA wage law, give Fred his final paycheck in hand at termination.
adjusterjack Super Moderator
Fred was employed at will which means he can be fired for any reason or no reason, even "a stupid moment of lapse in judgment."
He shouldn't just "look into unemployment." He should file now, whether he gets it or not.
Yes, he was "still employed" pending a decision on the part of his employer. Nobody did anything wrong there.
As for the paycheck, I don't have time to look it up, but my guess is that there is a provision in the law that allows for mailing the final check though I suppose that Fred could ask to be allowed to come in and get it if it hasn't been mailed yet.
Bottom line: No recourse. Nobody did anything wrong except Fred.
adjusterjack, Mar 21, 2019
hrforme likes this.
cbg Super Moderator
If Fred did not receive his final paycheck in accordance with MA law, then he can file a complaint with the state Attorney General's office. You should know, however, that there is a provision in the law that exempts the employer from the final pay law if he is not on site when he is fired.
Other than that, he's out of luck. The employer did nothing illegal in terming him; no protected rights were violated. There is no law he can invoke and no series of steps he can take that will force the employer to rehire him. He's fired and there's nothing he can do to change that unless the employer has a change of heart.
cbg, Mar 21, 2019
adjusterjack said: ↑
The MA wage law I know, I work for a payroll company in MA and the employer is in violation of that right now. MA Wage Law: Payment of Wages " any employee discharged from such employment shall be paid in full on the day of his discharge..."
The part that is most puzzling is Fred was told a decision had been made, he was still employed and he just needed to attend a meeting the next day before being allowed to resume his duties. The employer then calls the next day 2 hours prior to the meeting and says don't bother coming in, you're fired. The decision was made that he was not going to lose his job, then they changed their mind.
I get that any at will employee can be fired at any time for just about any reason. I get that Fred screwed up big time. But for the employer to state to him he did not lose his job, then 24 hours later say that he did?
They also did not, in accordance with MA wage law, give Fred his final paycheck in hand at termination.
Purified Fred can investigate his remedies by contacting his local elected officials, hiring a lawyer, or contacting the state agency charged with enforcing wage and labor violations.
People change their minds with great regularity.
Corporations are considered people, too.
Corporations aka employers, change their minds, too.
I see nothing for which Purified Fred will be able to enrich himself.
If you do, you might wish to advise Fred as to how he should proceed.
Fred actually has no history of behavior like this prior to this incident, which is why he even has himself baffled.
Read the many press and other media accounts.
Mr. Big or Ms. Bigger get charged with a crime, or an embarrassing civil infraction.
I'm sure you recall many of the perverts that got outed during the "me too" early days.
Harvey Weinstein checked himself into a sexual rehab institute, as did many others.
it seems, according to those who speak for everyone, rehab shows contrition, remorse, and the ability to begin the journey to self improvement.
What Fred does is up to him.
I have no personal stake in what happens to Fred.
Yes, it is all up to Fred. I was just astonished that his employer handled his situation so poorly. Again, I get it, Fred could be fired for anything at all. But to tell the poor bastard that he isn't losing his job over the incident, then calling him on the phone two hours before his disciplinary meeting saying don't come in you're fired? That's harsh. At this point he does not know when he'll be paid for last week of wages and accrued vacation time.
You're right, that's exactly what the law says:
2017 Massachusetts General Laws :: PART I ADMINISTRATION OF THE GOVERNMENT :: TITLE XXI LABOR AND INDUSTRIES :: Chapter 149 LABOR AND INDUSTRIES :: Section 148 Payment of wages; commissions; exemption by contract; persons deemed employers; provision for cashing check or draft; violation of statute
But you missed this part:
"but an employee absent from his regular place of labor at a time fixed for payment shall be paid thereafter on demand"
Since Fred wasn't there the day he was fired it's up to him to arrange to go in and get his pay. Right?
zddoodah Well-Known Member
Options for what? Unless he doesn't get his final paycheck in a reasonable amount of time after his termination, there's nothing for which he needs "options."
Can they state he is still employed and then just change their minds?
"They" did do that, so it should be obvious that "they" can do it. And it's perfectly legal.
Out of curiosity, where does Fred work that the local police have so little to do that they're willing administer BAC tests to employees at the request of local employers? Or is there something special about Fred's job or employer that made the police willing to involve themselves in what would ordinarily be a private matter between employer and employee?
zddoodah, Mar 21, 2019
I very much doubt that the employer stated that Fred had not lost his job and was not going to lose it. At the time Fred spoke to them, they had not yet made a decision so, by default, he had not lost his job yet. Later a decision was made and that decision was that he was fired. Now he had lost his job.
I realize that you are trying to make the initial comment into a binding decision but really, it isn't.
You are hanging your hat on one paragraph of the MA law on final wages and ignoring the part that doesn't suit your book. It is by no means clear (and I am an HR manager in MA) that the law has been violated. But even if it is, that doesn't give Fred any cause of action other than to get his final wages. It's not going to get him his job back even if you were right.
Well it appears that Fred will be paid via direct deposit tomorrow. Payroll is processed on Wednesday for Friday DD. Since Fred and everyone else thought Fred was staying on as an employee on Wednesday morning, his payroll was run along with everyone else's. By the time the decision was reversed by corporate late in the day, the payroll was in process for DD. Company decided not to try and do a DD recall.
So the local plant management had made the decision to keep Fred on, but when corporate got the copy of the incident report they overrode the plant management decision. I happen to know a few others employed in the same place, local plant management is not happy about corporate overriding them, makes them look bad. The local plant was it's own place until being bought out a few years back. Guess they're not thrilled with the new corporate thing either.
Fred's just a manufacturing guy in a manufacturing plant. Nothing special. No clue why the night supervisor called for the police. So just a crappy deal all around. Employers behaving badly, but they have the right to do so. Thank you all for the info.
And of course, Fred is completely blameless here. Uh-huh.
hrforme, cynthiag, Disabled Vet and 2 others like this.