Question

Wrongful suspension, do i have a case?

Asked 3 November 2011 · 1 answer

The question

I was walked out of my work place for something that I was wrongly accused of pending an investigation. Before this incident I had never been in trouble prior to this, never wrote up or ever warned before. I had a review of the incident and was brought back to work with probation term for three years and one of my probation terms was " You will not use your cell phone at any time other then at break times in the designated areas described in the employee handbook." In my scheduled lunch break my mom had sent me a picture of my daughter and I took my phone into my work and showed a lady I work with, put it back in my coat pocket and went back to work when my break was over. Then was walked out again from my supervisor saying I had violated my probation beacuse he was under the understanding that I wasnt allowed to take my phone inside at all. And that was not what my paper work stated. I told him thats not what my paper work said, me metioned that he wasnt sure beacuse he had not seen it for himself but he had heard I wasnt allowed to bring it inside, I told him I had my paper work still in my car I asked to get it and show him and he said no that it wasnt nessicary, that I was going to be suspended pending another investigation. I was called by the human resource department and took my phone into show him the dates and times my texts were sent and none were during my working hours, he worte the times down and said he had more investigating to do and would get back to me. 3 days later he told me I had to bring in my cell phone bill with my dates and times of text messages to him. I was told by my cell phone company that they do not hold those records and I would have to contact the legal office to get them, I have contacted them and will be requsting that information. I feel harrased at work and was wonderinf if I have a case of harasment against my boss, He had also been telling my other emplooyees to watch me to see if I had my phone inside becuase of my probation. He also told them what he had thought my probation terms were, because when they told me what I was on it for it was the exact words he had told me.

From the LawyerCentral forum archive. Originally posted 3 November 2011 on a legal forum that has closed. Names and contact details were removed. See the original (Internet Archive).

1 answer

Visitor answer 4 November 2011

You do not provide some operative facts which would better enable responders to address your post. For example, are you an “at-will employee” in the private sector? Are you covered under a union contract, an employment contract or a civil service protection system? These background facts would add important context.

If you are an at-will employee (as are the vast majority of American workers), then you probably do not have any basis for challenging your probation or your current suspension. If you are at-will, your employer could dismiss you without cause irrespective of the terms of your probation. An employer can fire an at-will employee for any reason as long as said reason does not contravene a law or a contract.

The fact your supervisor reportedly did not follow the terms of the probation would not matter. Moreover, his conduct in this regard alone does not constitute cognizable “harassment” under the law.

Indeed, if you are an employee at-will, you are fortunate to still have a job. While three years probation may appear harsh, your employer could have fired you for the circumstances leading to your probation and/or the circumstances leading to your current suspension.

Two additional points/questions: First, why didn’t the representative from Human Resources accept the data information on your phone to establish that you received the text during your break and not during work hours? I do not know of any phone company which delineates the transmission of individual text messages on its customers’ phone bills. If the phone company does not voluntarily turn over this information, there may be no practical means for you to obtain it. Human resources’ request may be impossible for you to fulfill. (If this matter involved a civil or criminal proceeding, a subpoena could force the phone company to produce the information. However, you do not have the apparent basis for a possible civil action here.)

Second, if you return to work, you need to operate like “Caesar’s Wife” as long as you remain employed with this company. Generally, you need to follow the letter and the spirit of all of the company’s rules. In particular, do not take your phone out of your pocket for any reason during work hours in the workplace! Cell phone access is not worth losing a job (at least without a comparable job already lined up).

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