Employment Termination is a Life Altering Event

Hi. My name is Larry Seale and I was a First Transit Denver/Longmont employee (Bus Driver) from December 31st, 2006 until January 26th, 2009. I suffered a devastating illness on July 26th, 2008 and was off work until I was terminated in January, 2009.

In my humble opinion, I was an outstanding employee. No points in almost 19 months of driving, an Employee of the Month in 2008, multiple Letters of Appreciation, etc. What's the problem? I got sick, pure and simple!

Ask yourself two questions: Is it fair and is it legal? I think the resounding answer to the fair question is "NO!" but we all know that "life ain't fair". "Is is legal" is a separate issue and the purpose of my blog is to discuss our employment rights. I have done a great deal of research in the last sixty days and I may be able to offer some advice (not legal advice of course, "I ain't no stinkin' lawyer" :-) on how I think you can understand and protect your rights.

Most states (in my case, Colorado) are "at will", meaning that in most cases, the company can terminate you, or you can resign, without notice and without a reason. There is some protection afforded an employee under State/Federal law, an employment or Collective Bargaining Agreement (CBA) and the company Rules and Regulations (company policy). Also, find out if your state has passed a complimentary law to an existing federal law, such as California's Family Leave Act.

I was a member of Amalgamated Transit Union (ATU) Local 1001 and I was covered under the CBA. Please read your CBA cover to cover! My interpretation of my CBA is that you can only be terminated for "just cause". After I was terminated, I contacted the union and was told "that's not a union matter but you can contact your shop steward and file a grievance if you'd like". Hmmm, terminated for other than misconduct or another offense that could result in termination and it's not a union matter? Interesting! "Unions should be made of sterner stuff!" In defence of the local, I have since had a meeting with a local official and they will "discuss" the situation.

So, what exactly are your protections? Here's my lay views:

Your employee handbook is usually a condensed version of company policy. Early on I was told "company policy is irrelevant" by someone I suspect was an attorney. WOW! In my opinion, company policy may be VERY important.

Your CBA or other employment agreement. Remember, these agreements might change your "at will" employment status.

Colorado Law - offers very little protection. Wage and Hour has a few rules but mostly only regarding pay. The courts have offered limited protection under the "fair practices" or "promissory estoppel" doctrines. Don't count on a lot of help in Colorado! Some states offer more protection than Colorado.

Federal Laws/Regulations such as FMLA, ADA, EEO, etc. These laws can be very confusing, not just to the employee, but also to the employer. You may be granted additional rights by company policy, a CBA or state laws/regulations, etc., but your federal rights CANNOT be limited. Some of these laws have a "lot of teeth" and it's wise to understand them as well as possible.

If you think your rights have been violated and the company seems to be ignoring you, you might have several avenues of recourse:

1. Post to my blog :-) and we can discuss your situation.

2. File a formal grievance and possibly go to BINDING arbitration under your CBA or other employment agreement. Check your agreement!

3. File a complaint with a federal agency such as the Department of Labor (for FMLA complaints), the EEOC (for discrimination complaints), the Department of Justice (for ADA complaints), etc. My only word of caution is to understand your rights prior to filing a complaint. My understanding is that filing a complaint with a federal agency might force you into binding arbitration or a possible agency lawsuit and effectively limit other recourse. Of course, it doesn't cost anything except time.

4. Contact a GOOD employment attorney. In most cases, you have the right to a jury trial in either state or federal court. In my opinion, you're hiring someone to represent you and you're interviewing them for a job you want them to do for you. Pick the right person! It's likely to cost you some money, at least up front, because you just hired someone to work for you. Your attorney might have the right to recover cost and attorney fees if you prevail in a lawsuit. I have some personal thoughts on what a good attorney is and perhaps I'll share my thoughts at a later time. I was once told (jokingly, of course) to ask an attorney if they'd sell their mother for a quarter. If they replied "Sure!" AND offered to give you change, hire them!

Regardless of which approach you decide to take, keep notes, notes and more notes! Document every contact that has anything to do with you're situation. Keep envelopes. Who knows when a postmark might be in important? If you send a letter, think about "Certified, return receipt" just to be on the safe side. I sure I've missed a lot so post your criticisms as warranted.

Finally, my rules for posting on my blog. You have no First Amendment rights! I alone make the decision on what is appropriate to post. You can't "bad mouth" any individual or entity such as a union or company. Keep it civil. You absolutely can't suggest or advocate any illegal act! Keep your sense of humor; these are very serious issues but your state of mind, no matter how bad things seem, is of utmost importance.

Thanks. -larry-