http://gamingtrend.com
November 26, 2014, 11:40:06 PM *
Welcome, Guest. Please login or register.

Login with username, password and session length
News:
 
   Home   Help Search Calendar Login Register  
Pages: [1]   Go Down
  Print  
Author Topic: Need Labor Law Advice  (Read 396 times)
0 Members and 1 Guest are viewing this topic.
Rowdy
Gaming Trend Senior Member

Offline Offline

Posts: 727


View Profile
« on: October 29, 2010, 02:52:21 AM »

My brother has found himself in an ugly situation with an ex-employer, and my family is debating what, if anything, he should do about it.  So, I turn the hive mind for advice.

He's a hydro engineer, and worked for a single company for about two years, I think.  Two months ago he was summoned to the boss's office and told he had a choice between resigning and being fired due to the many, many personality clashes he had with various people there.  He decided to quit, possibly not a good decision since he immediately gave up any severance.  However, for better or worse, that was his decision.

For the past two months he's been applying for various jobs and recently engaged a head hunter to help him look.  He's had a handful of interviews but nothing has panned out.  A couple days ago he was called up by his head hunter, and basically fired again.  The HH told him he was a liar, and that none of the companies he had applied with would ever consider him.  The problem?  He had told them all that he resigned from his previous job due to personality conflicts.  Each of these companies, and eventually the HH called his previous employer (since that's the only engineering experience he has to document) to confirm the story and get a reference, and were all told that he had been fired, and that he had not resigned of his own accord.

He's kind of devastated that the past two months of looking have all been sabotaged and more importantly that all the engineering firms local here have now apparently black listed him because his ex-employer is giving out this story. 

Clearly this should be easy to prove for a lawyer - if he was truly fired, then where's his severance package?  If he quit, then shouldn't they be on the hook for defamation of character, or something, since they're effectively preventing him from getting a new job?

He's 30, has a 7 month old at home, and two mortgages.  He needs a break.

Any advice?  Does he have grounds for a lawsuit?
Logged
godhugh
Gaming Trend Senior Member

Offline Offline

Posts: 1064


View Profile
« Reply #1 on: October 29, 2010, 02:59:10 AM »

I don't have legal advice but I just want to say that if you're fired then you are not entitled to severance pay.
Logged
Mr. Fed
Gaming Trend Senior Member

Offline Offline

Posts: 985


View Profile WWW
« Reply #2 on: October 29, 2010, 03:37:54 AM »

1.  YMMV depending on jurisdiction.

2.  This isn't the sort of situation on which you can get adequate legal advice online.

3.  I am not your lawyer or your brother's lawyer.

That said:

1.  Most employers avoid giving any references to avoid this sort of situation.  The conduct you describe is odd.

2.  Most head hunters know to exercise some skepticism about a former employer's claims about how a client resigned/was fired.  The head hunter's conduct, as described, is very odd.

3.  Your brother COULD, depending on a lot of other facts that you haven't provided, have a cause of action for defamation.  But defamation is very tricky:
     a.   At a minimum, you have to prove that the statement made about you was false, that it was a statement of fact, and that it harmed you.
     b.  You also have to prove some level of culpability.  How much depends on whether the victim is a public or private figure.  In your brother's case, you'd probably have to prove at least that the ex-employer was negligent in making a false statement (as opposed to being deliberate and malicious).
     c.  Many jurisdictions put additional barriers in the way of defamation suits.  Some have statutes making employer references privileged -- that is, they can't be the subject of a defamation suit unless the plaintiff can carry an additional burden.  In some jurisdictions, IIRC, you can't sue based on a reference from a former employer at all.  In others, you have to prove that the former employer acted out of actual malice (as opposed to merely negligently or recklessly).

Your brother needs to consult a lawyer.  It's not a "labor" lawyer -- that term usually refers to something else (union-employer relations).  You want a plaintiff-side employment lawyer or a plaintiff-side defamation lawyer.

What state?
Logged

Popehat, a blog.  Now 35% less ugly!
Daehawk
Gaming Trend Senior Member

Offline Offline

Posts: 11755



View Profile
« Reply #3 on: October 29, 2010, 03:40:38 AM »

If you are fired you get unemployment. Sounds like he hasa good case against a Ahole that has ruined his ability to find work and support himself and family.
Logged

---------------------------------------------------
I am Dyslexic of Borg, prepare to have your ass laminated.

Check my trader rating. Im 22+ and zero negs. Trade with me! smile
Rowdy
Gaming Trend Senior Member

Offline Offline

Posts: 727


View Profile
« Reply #4 on: October 29, 2010, 03:57:20 AM »

Quote from: godhugh on October 29, 2010, 02:59:10 AM

I don't have legal advice but I just want to say that if you're fired then you are not entitled to severance pay.

My understanding (here in Alberta) is that if he's dismissed, the company is legally obligated to provide a severance package.  I'm not positive about that, but am getting my info from several HR type folks I know.  By resigning, he gave that up, which is likely why the ex-employer gave him the choice.

Quote from: Mr. Fed on October 29, 2010, 03:37:54 AM

1.  YMMV depending on jurisdiction.

2.  This isn't the sort of situation on which you can get adequate legal advice online.

3.  I am not your lawyer or your brother's lawyer.

That said:

1.  Most employers avoid giving any references to avoid this sort of situation.  The conduct you describe is odd.

2.  Most head hunters know to exercise some skepticism about a former employer's claims about how a client resigned/was fired.  The head hunter's conduct, as described, is very odd.

3.  Your brother COULD, depending on a lot of other facts that you haven't provided, have a cause of action for defamation.  But defamation is very tricky:
     a.   At a minimum, you have to prove that the statement made about you was false, that it was a statement of fact, and that it harmed you.
     b.  You also have to prove some level of culpability.  How much depends on whether the victim is a public or private figure.  In your brother's case, you'd probably have to prove at least that the ex-employer was negligent in making a false statement (as opposed to being deliberate and malicious).
     c.  Many jurisdictions put additional barriers in the way of defamation suits.  Some have statutes making employer references privileged -- that is, they can't be the subject of a defamation suit unless the plaintiff can carry an additional burden.  In some jurisdictions, IIRC, you can't sue based on a reference from a former employer at all.  In others, you have to prove that the former employer acted out of actual malice (as opposed to merely negligently or recklessly).

Your brother needs to consult a lawyer.  It's not a "labor" lawyer -- that term usually refers to something else (union-employer relations).  You want a plaintiff-side employment lawyer or a plaintiff-side defamation lawyer.

What state?


Alberta, Canada... so not sure if that changes anything.  It sounds like in any event that it is worth his discussing his problem with a lawyer.  I honestly don't know many more details than I've given; we're not close, and the personality conflicts he has with others sometimes extend to me as well.  However, he's still my brother, and it sounds to me like his ex-employer is intentionally screwing him.  Defamation may not be the right term or the right case to pursue, it was all I could think of.  But if the facts that I've been told are accurate, then surely a company can't let a person 'resign' and then later go against their word.  I don't know how the HH and the jobs he's been interviewing for have obtained the info from his previous employer, I assumed it was from references, but I agree, it seems odd they'd even bother to give a reference in this sort of situation.

Thanks very much for the advice, particularly on the type of lawyer to seek.  I will pass the info on.

« Last Edit: October 29, 2010, 03:59:43 AM by Rowdy » Logged
Rowdy
Gaming Trend Senior Member

Offline Offline

Posts: 727


View Profile
« Reply #5 on: October 29, 2010, 04:03:45 AM »

Quote from: Daehawk on October 29, 2010, 03:40:38 AM

If you are fired you get unemployment. Sounds like he hasa good case against a Ahole that has ruined his ability to find work and support himself and family.

He is getting unemployment at the moment, at least.  Financially he's barely making it, thanks to rental income from a condo they own (one of the mortgages) but he's certainly not doing well.
Logged
Pyperkub
Gaming Trend Senior Member

Offline Offline

Posts: 1569


View Profile
« Reply #6 on: October 29, 2010, 06:11:06 AM »

Most of the advice you've got so far is more US law, and what we think we know down here, probably doesn't apply. You need to specify that this is canadian law.
Logged

Pardon me, but that is a .... damn fine cup of coffee.
CeeKay
Gaming Trend Staff
Gaming Trend Senior Member

Offline Offline

Posts: 71766


La-bibbida-bibba-dum! La-bibbida-bibba-do!


View Profile
« Reply #7 on: October 29, 2010, 07:32:52 AM »

Quote from: godhugh on October 29, 2010, 02:59:10 AM

I don't have legal advice but I just want to say that if you're fired then you are not entitled to severance pay.

that was the way I thought it worked too.
Logged

Because I can,
also because I don't care what you want.
XBL: OriginalCeeKay
Wii U: CeeKay
Mr. Fed
Gaming Trend Senior Member

Offline Offline

Posts: 985


View Profile WWW
« Reply #8 on: October 29, 2010, 03:48:00 PM »

Oh, Canada.

You can pretty much ignore my advice.  I don't know Canadian law, except that it is quite different and much more worker-protective.  I suspect there are employee commissions and organizations and things in his area.  Have you Googled around on the subject?

And Rowdy, will you forgive a rant that really isn't about you?

[rant]

1.  Why do people think that law of all sorts is uniform across all states, and even all nations?

2.  Why do people think they can get legal advice based on minimal incomplete facts?  I mean, you wouldn't post an advice request saying "Say, my brother has had a substance I won't specify oozing from a place on his body I won't specify.  This happened a number of days I won't specify after something I won't specify happened to him, but it could be related to his medication I won't specify or his chronic condition I won't specify. Anyway, he's also having an alarming symptom I won't specify.  Hey doctors, is it serious?"

[/rant]
Logged

Popehat, a blog.  Now 35% less ugly!
Rowdy
Gaming Trend Senior Member

Offline Offline

Posts: 727


View Profile
« Reply #9 on: October 29, 2010, 05:41:46 PM »

Quote from: Mr. Fed on October 29, 2010, 03:48:00 PM

Oh, Canada.

You can pretty much ignore my advice.  I don't know Canadian law, except that it is quite different and much more worker-protective.  I suspect there are employee commissions and organizations and things in his area.  Have you Googled around on the subject?

And Rowdy, will you forgive a rant that really isn't about you?

[rant]

1.  Why do people think that law of all sorts is uniform across all states, and even all nations?

2.  Why do people think they can get legal advice based on minimal incomplete facts?  I mean, you wouldn't post an advice request saying "Say, my brother has had a substance I won't specify oozing from a place on his body I won't specify.  This happened a number of days I won't specify after something I won't specify happened to him, but it could be related to his medication I won't specify or his chronic condition I won't specify. Anyway, he's also having an alarming symptom I won't specify.  Hey doctors, is it serious?"

[/rant]

Forgiven, and completely understood.  I'm sure it's no different than having a relative say 'Hey, you know computers, right?  Mine is slow, what's wrong with it?", or an American saying to me, "Hey, you're Canadian, right?  Do you know my brother Paul?  He lives in Toronto."   icon_twisted

I wasn't so much looking for specific advice really as I was wondering if it's even worth his (our) time and money talking to a lawyer at all.  If four people posted that it was tough luck, no chance then I wouldn't bother.  All I really took out of your answer was yes, it sounds like there's potential there depending on a bunch of other factors that I don't know specifics on and it's worth pursuing.
Logged
Mr. Fed
Gaming Trend Senior Member

Offline Offline

Posts: 985


View Profile WWW
« Reply #10 on: October 29, 2010, 05:56:42 PM »

Quote from: Rowdy on October 29, 2010, 05:41:46 PM

Quote from: Mr. Fed on October 29, 2010, 03:48:00 PM

Oh, Canada.

You can pretty much ignore my advice.  I don't know Canadian law, except that it is quite different and much more worker-protective.  I suspect there are employee commissions and organizations and things in his area.  Have you Googled around on the subject?

And Rowdy, will you forgive a rant that really isn't about you?

[rant]

1.  Why do people think that law of all sorts is uniform across all states, and even all nations?

2.  Why do people think they can get legal advice based on minimal incomplete facts?  I mean, you wouldn't post an advice request saying "Say, my brother has had a substance I won't specify oozing from a place on his body I won't specify.  This happened a number of days I won't specify after something I won't specify happened to him, but it could be related to his medication I won't specify or his chronic condition I won't specify. Anyway, he's also having an alarming symptom I won't specify.  Hey doctors, is it serious?"

[/rant]

Forgiven, and completely understood.  I'm sure it's no different than having a relative say 'Hey, you know computers, right?  Mine is slow, what's wrong with it?", or an American saying to me, "Hey, you're Canadian, right?  Do you know my brother Paul?  He lives in Toronto."   icon_twisted

I wasn't so much looking for specific advice really as I was wondering if it's even worth his (our) time and money talking to a lawyer at all.  If four people posted that it was tough luck, no chance then I wouldn't bother.  All I really took out of your answer was yes, it sounds like there's potential there depending on a bunch of other factors that I don't know specifics on and it's worth pursuing.

I am completely ignorant of most Canadian law.  However, (1) my strong sense is that Canada is much much more protective of employees, and (2) Canada's protection of freedom of expression is . . . well, let's just say it's different.  So my suspicion is that your brother is likely to have more options in Canada, and should consult a lawyer or an advocacy group.
Logged

Popehat, a blog.  Now 35% less ugly!
godhugh
Gaming Trend Senior Member

Offline Offline

Posts: 1064


View Profile
« Reply #11 on: October 29, 2010, 06:32:39 PM »

Quote from: Rowdy on October 29, 2010, 03:57:20 AM

Quote from: godhugh on October 29, 2010, 02:59:10 AM

I don't have legal advice but I just want to say that if you're fired then you are not entitled to severance pay.

My understanding (here in Alberta) is that if he's dismissed, the company is legally obligated to provide a severance package.  I'm not positive about that, but am getting my info from several HR type folks I know.  By resigning, he gave that up, which is likely why the ex-employer gave him the choice.


Ah, didn't realize you were in Canada. Yeah, here in the US they just mail you a check the next day for what they owe and tell you to hit the streets.
Logged
Pages: [1]   Go Up
  Print  
 
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.19 | SMF © 2013, Simple Machines
Valid XHTML 1.0! Valid CSS!
Page created in 0.141 seconds with 47 queries. (Pretty URLs adds 0.05s, 2q)