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Roni F. Noland | JOB DOC

Personnel file may help in unemployment claim fight with ex-company

Email|Print| Text size + By Roni F. Noland
February 10, 2008

Q. When I filed for unemployment, the company gave a different reason for my termination and is now fighting my unemployment claim. This change in story also has me wondering what they are telling any prospective new employer about me when I list my past employment on applications. Can they legally tell me one reason for the termination and tell others something different? And how can I work around not wanting the most recent employer contacted for a reference when interviewing for a new company?

A. Your question actually asks three different questions, all of them having to do with the best way to separate from a job when the decision to leave is not your own. I suggest you may also wish to seek legal counsel to help you work out a separation arrangement.

The first question you ask is, what happens if an employer and an employee present different stories to the Division of Unemployment Assistance? The division reviews each unemployment claim on its own merits, and makes a determination. If there is conflicting information, a representative may contact you and ask for additional information and/or to schedule a hearing.

I assume you are already working with a claim representative in the division. If you are not or if you need additional help, contact the division's problem resolution unit at 617-626-5400. The reason your employer is changing the story is that they may be trying to prevent their unemployment insurance rate from rising by limiting the number of claims filed against them.

You may be able to prove inconsistency on your employer's part, if there is documentation in your personnel file that contradicts what the employer is trying to tell the division. This would be a good time to request a copy of your personnel file if you don't already have one. Your employer is obligated by law to provide you access to your personnel file.

The next question that you ask is: Does an employee who has been terminated have any legal rights when it comes to what the employer can say about him or her to others? Employers generally are cautious about revealing too much information to outsiders about a former employee especially when it comes to discussing the circumstances surrounding an employee's termination. Employers are aware that they can be held liable for a claim of defamation, if an employee can prove that the employer is purposely spreading lies, and is doing so with malice.

It is illegal for employers to lie about employees, to hurt their reputation, or to prevent them from finding another job. If that is the case with your most recent employer, when contacted, they simply would verify your dates of employment and your job title without providing additional information.

On your final question, whether it's acceptable to omit your most recent employer as a reference depends on a variety of factors: how important reference checks are in your type of work; how long you worked for your most recent employer; how relevant your last job is to the jobs you are applying for now; what the rest of your work experience is like; and how you explain why you are not including your most recent employer as a reference.

If you have a fine track record of solid work experience and excellent references prior to your most recent job, you might not suffer by omitting your most recent employer as a reference. If, on the other hand, your prior work experience is spotty but you worked for several years at your most recent employer, then leaving off a reference from your last employer would seem suspicious to prospective employers.

For the names of attorneys who specialize in employment law, you may want to use the referral service of either the Boston Bar Association or the Massachusetts Bar Association.

For the Boston Bar, go to their website at bostonbar.org/lrs or call 617-742-0625 to request a referral. The Massachusetts Bar website, massbar.org/public-and-community-services/need-a-lawyer, has a referral request form that you complete. You will be referred to up to three attorneys. For either service, the cost of the referral is free; the cost of the consultation is approximately $25 for the first half hour.

Florists' breaking of some laws questionable
Q. I work for a florist/greenhouse. They bring in most of the plants and only grow a few. They are not a farm. I was told now, after 6 months, that we do not get overtime pay for over 40 hours, nor can we collect unemployment because we qualify as farm workers. I was not hired in this capacity, nor is it a farm. Is this legal? They want us now to work 10- to 12-hour days, without overtime. I don't get coffee/sit breaks or paid lunch. Is that legal, especially if we are not compensated? I was also questioned on my recent health procedure (which has not affected my performance), whether it may affect my permanent status. Is this legal? Also, I was told not to have personal conversations with other employees, as this is grounds for dismissal. Yet, the bosses discuss personal evaluations and gossip with other employees.

A. Your employer does appear to be in violation of the law on some of the issues you raise, but well within their legal rights on others. I am, however not clear about your motives in asking your questions or in exactly what is going on in your workplace.

Do you want to blow the whistle on your employer and report them to the appropriate federal or state agencies? Or do you want to improve your working conditions? Are you concerned about losing your job? Is the employer singling you out, for example, by reprimanding only you about personal conversations? Do you think they are trying to use your recent hospitalization as an excuse to get rid of you? What course of action, if any, you decide to take, depends on what you want and whether or not you want to keep your present job.

On the overtime issue, your employer may or may not be in violation of the law. It depends on exactly what kind of work you do. If you are considered to be an agricultural worker, then you are not entitled to collect overtime pay. An "agricultural worker" is broadly defined, not only as a farmer or farm laborer, but as anyone who is involved in the production, cultivation, growing, and harvesting of horticultural commodities such as plants, says Dan Field, an attorney with Morgan, Brown & Joy LLP.

Greenhouse workers who care for plants and flowers - whether they are cultivated on-site or elsewhere - are exempt from overtime. On the other hand, greenhouse workers who sell the plants or other agricultural products like fertilizer and soil are eligible for overtime pay.

If your job responsibilities would make you eligible for overtime compensation, remember that overtime is based on the total number of hours that you work in a week, not the hours that you work in any given day. Employers are not required to pay overtime until the employee works more than 40 hours in a work week. It is legal for an employer to ask - in fact, to even require - that employees work 10-12 hour days, says Field.

Whether your employer is required to pay employees' unemployment insurance when there are layoffs depends on the total number of employees. Greenhouses with more than 10 employees are required to pay unemployment.

If you believe that your employer is in violation of the law on this, you can choose to "drop a dime" and report the employer to the Department of Unemployment Assistance. The main Boston office is located in the Charles F. Hurley Building, 19 Staniford St., Boston, 617-626-6560. The department operates other offices throughout the state.

Under Massachusetts law, employers are required to provide an uninterrupted 30-minute unpaid meal break after each six hours of work. During this break, employees must be relieved of all responsibilities and are even allowed to leave the premises if they want to.

Employers are not required by law to offer any additional breaks, such as coffee or smoke breaks.

Your employer clearly violated the law by asking about your medical procedure, especially as you did not ask for any time off and did not ask for or need a work accommodation. An employer can request information about an employee's health condition or a medical procedure when the employee asks for a work accommodation or certain kinds of leave, including leave under the Family Medical Leave Act, says Field.

Either the Massachusetts Commission Against Discrimination or the Equal Employment Opportunity Commission or both might be interested in hearing about this experience with your employer, especially if you are terminated. To file a complaint, visit their Boston (617-994-6000) or Springfield (508-799-8010) offices in person and meet with an intake worker. For more information, go to their website at mass.gov/mcad. You don't need to file a claim with both the MCAD and the EEOC but you may. The website for the EEOC is eeoc.gov.

As far as talking with co-workers on the job, this is one of those "gray" areas. Use good judgment and don't talk excessively while at work. When an employee's excessive talking interferes with work performance, it is not illegal for the employer to request the employee stop talking and return to work. Companies have been found in violation of the National Labor Relations Act if they institute policies prohibiting employees from talking with one another, says Field.

Roni F. Noland is a career counselor/coach in private practice. She can be reached at rfnoland@comcast.net.

E-mail questions to jobdoc@globe.com or mail to Job Doc, Boston Globe, Box 55819, Boston, 02205-5819.

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