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What is more common is that John starts getting written up for poor performance, which creates a written record and provides specific examples of that poor performance.
Most companies know how to document these things properly. Unless John has written documentation that shows he was discriminated against, which is hard, and written record of bringing those instances to HR and management's attention, John doesn't really have a case. Or at least he doesn't have a case that any lawyer is going to waste their time on.
Any company that fires someone "just because" is run by imbeciles, and it rarely, if ever, happens. Layoffs are a different story. But even those or not for no reason. They are usually a result of declining numbers or restructuring. And contrary to popular belief, no one is entitled to severance unless they have a contract that states that they are. Most non-union positions don't have that. Companies of a certain size are subject to the WARN act, but all that does is give people 60 days notice that they are being laid off.
But employers are still scared of lawsuits. I remember at a prior job I had a co worker. An older woman in her 60's. She had some health problems as well and walked with a cane. She had been with the company about 30 years. She really did not do a lot. She kind of did the bare minimum and did it do it very well. She made a career out of shopping on the internet when she was working. The CEO caught her once and dressed her down. And I worked there between 2009-2013 when the economy was bad. They let plenty of people go. The HR manager had the nickname "Angel of Death." But this woman lasted. Maybe they felt bad for her. I think it is more likely that they knew she could really give them a lot of problems if they fired her and chose to grin and bear it.
But employers are still scared of lawsuits. I remember at a prior job I had a co worker. An older woman in her 60's. She had some health problems as well and walked with a cane. She had been with the company about 30 years. She really did not do a lot. She kind of did the bare minimum and did it do it very well. She made a career out of shopping on the internet when she was working. The CEO caught her once and dressed her down. And I worked there between 2009-2013 when the economy was bad. They let plenty of people go. The HR manager had the nickname "Angel of Death." But this woman lasted. Maybe they felt bad for her. I think it is more likely that they knew she could really give them a lot of problems if they fired her and chose to grin and bear it.
Some employers are afraid of lawsuits. Mine isn't. I've seen a number of discrimination lawsuits filed, and not one of them succeeded. Most were dismissed with prejudice early in the process after a motion for summary judgement by the company listing the defects in the plaintiff's complaint.
But employers are still scared of lawsuits. I remember at a prior job I had a co worker. An older woman in her 60's. She had some health problems as well and walked with a cane. She had been with the company about 30 years. She really did not do a lot. She kind of did the bare minimum and did it do it very well. She made a career out of shopping on the internet when she was working. The CEO caught her once and dressed her down. And I worked there between 2009-2013 when the economy was bad. They let plenty of people go. The HR manager had the nickname "Angel of Death." But this woman lasted. Maybe they felt bad for her. I think it is more likely that they knew she could really give them a lot of problems if they fired her and chose to grin and bear it.
Yes, they are still afraid of lawsuits, which is why they cover all of their bases by documenting the heck out of everything. Lawyers aren't going to take a case that they know they can't win or waste their time with a case that will only net them a few thousand dollars.
In the case you mentioned, it's possible they were worried about an ADA lawsuit. And I will agree that those are tough. But even by your own admission, she did what she was required to do and did it well. That is the issue. It's hard to defend firing someone in that situation. The conversation would go something like:
"So she satisfied all the requirements of her position?"
"Yes."
"And she performed her job well?"
"Yes."
"So why did you fire her?"
"She was spending time shopping on the internet at work."
"Does any other employee ever shop on the internet during work hours?" (newsflash, just about everyone has done it at some point)
- Now the company has to explain why other people do the same thing, yet she was the only one fired. See where this is going? That's why she would have a case.
And frankly, if someone is getting their job done, and done well, then who cares if they shop on the internet after completing their work? And if she has that much time on her hands, then that's on management for not allocating work more effectively.
Yes, they are still afraid of lawsuits, which is why they cover all of their bases by documenting the heck out of everything. Lawyers aren't going to take a case that they know they can't win or waste their time with a case that will only net them a few thousand dollars.
In the case you mentioned, it's possible they were worried about an ADA lawsuit. And I will agree that those are tough. But even by your own admission, she did what she was required to do and did it well. That is the issue. It's hard to defend firing someone in that situation. The conversation would go something like:
"So she satisfied all the requirements of her position?"
"Yes."
"And she performed her job well?"
"Yes."
"So why did you fire her?"
"She was spending time shopping on the internet at work."
"Does any other employee ever shop on the internet during work hours?" (newsflash, just about everyone has done it at some point)
- Now the company has to explain why other people do the same thing, yet she was the only one fired. See where this is going? That's why she would have a case.
And frankly, if someone is getting their job done, and done well, then who cares if they shop on the internet after completing their work? And if she has that much time on her hands, then that's on management for not allocating work more effectively.
Company Attorney "Did other employees shop on the internet?"
Company Official "Yes, but not to the extent that Ms X did"
CA "Can you elaborate?"
CO "The average employee spent 10 minutes shopping. Ms X spent 5 hours a day, every day, shopping, which exceeds our state policy that de minimis use of the internet is OK. Ms X also bought items, while the other employees did this during a lunch or other break time, and did not buy items."
CA introduces web use logs showing Ms X's internet use, sites visited, actions taken on each site, etc.
Yes, they are still afraid of lawsuits, which is why they cover all of their bases by documenting the heck out of everything. Lawyers aren't going to take a case that they know they can't win or waste their time with a case that will only net them a few thousand dollars.
In the case you mentioned, it's possible they were worried about an ADA lawsuit. And I will agree that those are tough. But even by your own admission, she did what she was required to do and did it well. That is the issue. It's hard to defend firing someone in that situation. The conversation would go something like:
"So she satisfied all the requirements of her position?"
"Yes."
"And she performed her job well?"
"Yes."
"So why did you fire her?"
"She was spending time shopping on the internet at work."
"Does any other employee ever shop on the internet during work hours?" (newsflash, just about everyone has done it at some point)
- Now the company has to explain why other people do the same thing, yet she was the only one fired. See where this is going? That's why she would have a case.
And frankly, if someone is getting their job done, and done well, then who cares if they shop on the internet after completing their work? And if she has that much time on her hands, then that's on management for not allocating work more effectively.
That was a typo. What I meant to say was that she DIDN'T do it very well when I said she did the bare minimum.
Some employers are afraid of lawsuits. Mine isn't. I've seen a number of discrimination lawsuits filed, and not one of them succeeded. Most were dismissed with prejudice early in the process after a motion for summary judgement by the company listing the defects in the plaintiff's complaint.
Depends on what state you are in. I am in New Jersey. New Jersey is one of the most employee friendly states in the country when it comes to the courts and employment matters and wrongful termination.
Company Attorney "Did other employees shop on the internet?"
Company Official "Yes, but not to the extent that Ms X did"
CA "Can you elaborate?"
CO "The average employee spent 10 minutes shopping. Ms X spent 5 hours a day, every day, shopping, which exceeds our state policy that de minimis use of the internet is OK. Ms X also bought items, while the other employees did this during a lunch or other break time, and did not buy items."
CA introduces web use logs showing Ms X's internet use, sites visited, actions taken on each site, etc.
CA: Can you please provide data and documentation outlining the amount of time every associate spent shopping online? (they probably can't. technically it may be possible, but depending on the size of the company, it may be time consumingly prohibitive).
CA: Also, please provide documentation of your policy regarding personal internet use. (I can almost guarantee you there isn't one or it just says it's "discouraged.")
I guarantee you that if they actually did get the data regarding how many employees visited shopping websites (which is almost impossible to do), they will find that there's a whole lot more than just Ms X. If they didn't fire any of them, then that's a problem. Also, it's damn near impossible to determine why someone visited a site. Did they go to American Airlines' site to book their personal vacation or to prepare a travel budget estimate for business? Were they buying employee gifts or researching potential employee reward ideas? Someone would have to parse through months of internet data for every employee to get that info. That is time and cost prohibitive.
If the employer was on top of it, they would have documented it from day one and let her go. That would be a hard case for her to prove.
But employers are still scared of lawsuits. I remember at a prior job I had a co worker. An older woman in her 60's. She had some health problems as well and walked with a cane. She had been with the company about 30 years. She really did not do a lot. She kind of did the bare minimum and did it do it very well. She made a career out of shopping on the internet when she was working. The CEO caught her once and dressed her down. And I worked there between 2009-2013 when the economy was bad. They let plenty of people go. The HR manager had the nickname "Angel of Death." But this woman lasted. Maybe they felt bad for her. I think it is more likely that they knew she could really give them a lot of problems if they fired her and chose to grin and bear it.
The average worker doesn't have the money or time for this. You just move on.
I was fired while working as a contractor about ten years ago. There was no notice and no indication that anything was wrong. I left at 5, got a call at 5:30 from the agency saying I was fired, and that the agency I was hired through would meet me in the parking lot of a nearby grocery store the next day to give me my personal effects from my desk.
The situation sucked, but I wasn't making much. I needed to find a new job immediately.
The average worker doesn't have the money or time for this. You just move on.
I was fired while working as a contractor about ten years ago. There was no notice and no indication that anything was wrong. I left at 5, got a call at 5:30 from the agency saying I was fired, and that the agency I was hired through would meet me in the parking lot of a nearby grocery store the next day to give me my personal effects from my desk.
The situation sucked, but I wasn't making much. I needed to find a new job immediately.
And not only that. The reality is that suing your former employer is playing Russian Roulette with your career future. The example someone mentioned about the 67 year old, that person is not going to find another job at his age, so he really has nothing to lose by suing. But someone in their 40's or 50's who needs to find another job, suing is a bad idea. No matter how it goes, whether it goes to trial, whether it is dismissed, whether it settles early, there will always be a public record of that. Years later, a prospective employer can do a background check on that person and find he or she sued a former employer. That person may as well wear a placard that says "DO NOT HIRE ME. I AM A TROUBLE MAKER.
I worked for another employer for a few years. I remember there was an employee, an African American woman, who they let go after she was with the company 6 years. She was not very good at her job, and a lot of co workers had issues with her. They said she was nasty and abusive. They had counseled her many times and had even moved her a couple of times. She had a few different roles in her 6 years and was not very good at any of those roles. There were a couple of other employees who were let go for performance reasons. One was a Caucasian woman in her 20's whose performance was not up to par as well as attendance issues. She was only there about 8 months and was let go. No big deal. Another was a Caucasian male in his 30's. He was let go after 10 months for performance reasons. No big deal. But that woman was there 6 years in total. I think we know full well why. They had to really have their ducks in a row with her before letting her go. They had to show a long paper trail showing poor performance and write ups as well as issues with co workers. They had to show that they actually tried to help her succeed by moving her to a different role a couple of times in hopes that that would work out better.
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