While this week's announcement by WorldCom that it is laying off 17,000 employees grabs the headlines, thousands of others have suffered a similar fate over the past two years as companies adjust to the economic slowdown by reducing their workforces.
This probably explains why I've recently received quite a few letters which relate to employment issues. Here are a couple you might find helpful. As before, I contacted New York attorney Alan Sklover, an expert in labor law, for his insights. Sklover is author of the book, "Fired, Downsized or Laid Off," a user-friendly "must-read" for anyone who works for someone else.
Dear Gail —
I worked for a company called Automotive Dealers' Marketing, which was bought by Microsoft's CarPoint. CarPoint folded the company shortly after buying it. All they wanted was the database, apparently. Every employee was laid off with two days' notice.
Representatives from Microsoft specifically said that we would be able to continue our health plan under COBRA once the Microsoft-paid benefit term expired. However, months later when the COBRA paperwork showed, we were told that the health plan was being offered by another Microsoft company in Colorado called DriveOff.com, and that any health insurance we opted for was being offered through them only.
The cost was more than anyone could afford. Under the terms of our ADM plan, we should have paid about $100 a month for HMO coverage. Under the only option we were given, our health coverage was conventional insurance at a minimum of $350 per month. No one from Microsoft ever returned a call, letter, or email about it, and the administrators at DriveOff pled ignorance and told us to "take it or leave it".
Is this legal? And do we have any recourse?
Alan Sklover says it sounds as if "at best somebody was not clear about, or at worst, misrepresented" what you and your co-workers were entitled to.
It's entirely within the rights of a company to change the existing health insurance plan when they take over another firm. In fact, says Sklover, it's quite common. However, an employee who is laid off is entitled to remain on the plan they had when they were laid off.
What's unclear in your case is which health plan was in place at the time the layoffs occurred. Were you still covered by the insurance you had under Automotive Dealers' Marketing or had the Microsoft plan officially kicked in?
In Sklover's words, "When there's confusion over what you're entitled to, or if you believe there's a chance you have not received the benefit you deserve, then file a COBRA complaint."
He recommends going straight to the top by sending your letter to the company's CEO, in this case, Steve Ballmer. Here is what he advises you say:
Dear Mr. Ballmer,
I believe my federal rights were violated under COBRA when Microsoft purchased Auto Dealers' Marketing. I was told I could continue my health coverage under the company's plan and it looks like I'm only being offered the chance to continue under some other subsidiary of Microsoft.
I think this violates my rights under COBRA and I'd like you to look into this. To make sure you do and that I am sent any forms I need to fill out, I am sending a copy of this complaint letter to the head of the U.S. Department of Labor in Washington, D.C.
I look forward to hearing from you.
Naturally, you'll want to send this letter to both locations either via certified mail or FedEx so you have proof of delivery.
Don't expect this to even cross the desk of Steve Ballmer or Bill Gates. Some underling will get it. But the point is, you've put the onus of investigating this on Microsoft. In the words of Sklover, "Let them explain to the government why they haven't violated COBRA."
Let me know what happens.
I live in Georgia. Most states including my own are "right to fire/work" states. Companies can fire with impunity, cutting staff without answering any questions. The public would be shocked to learn what companies can do to their employees.
I worked for a very well known E-commerce company for two years and received only the highest of reviews from management. Then out of nowhere I and eight colleagues were fired for gross negligence, a charge I vehemently denied. When I asked for proof, a representative from the company pointed to a spreadsheet but would not let me see it.
None of us could collect unemployment insurance because in Georgia, being fired for gross negligence makes you ineligible for this benefit!
I retained a lawyer who told me the best I could hope for was to win an appeal in unemployment arbitration. Unemployment arbitration is a long bureaucratic process and if the employee misses any step along the way they lose their case. After nearly three months, I won my case. Although I finally received the unemployment benefits I was owed, the process took a toll on my family and my career.
Companies firing practices need to be reviewed by the press and state/federal government because the system is a racket ripe for corporate abuse.
My one question to you is what else legally can you do when wrongfully fired under these circumstances?
First of all, congratulations — you won! It wasn't easy, but you persevered. Unfortunately, justice can sometimes be costly and time-consuming.
It's true that, in general, companies can fire anyone, anytime they want. But increasingly, there are limits on the way an employee can be let go and the reasons. For instance, you cannot be fired because of your gender, race, a disability and so forth. It probably gives you little comfort, but the fact is, standards of behavior for employers have never been as high as they are today.
Attorney Slover points out that most employment law in this country is derived from the laws of "master and servant" in England. These incorporate certain understandings and responsibilities.
For instance, the concept of "loyalty" says you can't serve two masters at the same time. In today's world this translates into the idea that if you work full time for a company, you cannot work part-time for a competitor. However, in return, the law says an employer must show "good faith" to its employees. "It may sound archaic," says Sklover, "but in most states there is recourse if an employers acts in bad faith."
"Bad faith" on the part of an employer would include defamation, misrepresentation, and breach of the covenant of good faith and fair dealing. You might also have a claim on the basis of infliction of emotional distress.
The question is, what was said by your ex-employer when the state unemployment department asked if there was any reason these nine individuals should not receive benefits? Was your character defamed? Were things deliberately said with malice, i.e. to harm you or your reputation?
In the words of Sklover, "Frankly, it's hard to believe that nine people in a department were all grossly negligent. It doesn't pass the laugh test."
But employment law is largely a state matter. While Georgia is a tough state to win such a case, in Texas, says Sklover, it's easier.
You have to decide whether you want to leave this behind you and move on, or have the emotional and financial fortitude to fight on. In that www.nela.org. Its members are attorneys who primarily or exclusively practice employment law on behalf of employees. In other words, they are advocates for employee rights.
On final piece of advice from Sklover: "The law is guided more or less by logic. If you think it's unfair, there's a good chance a jury will think so, too."
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