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Lawyer Guys - Employment Law Help (1 Viewer)

Snotbubbles

Snotbubbles

Footballguy
Long story short. 

My wife is a nurse at the same hospital for nearly 20 years.  Spotless record, has always gotten great performance reviews.  She works a lot of night shifts and has had trouble sleeping for the past 10 years.  On her last shift she was accused by her supervisor of sleeping at the nurses station.  She has been asked by her supervisor to attend a meeting with HR tomorrow morning.  

1. Can I attend the meeting as an observer?

2. What defenses can she put on to avoid termination?

3. Her HR policies require progressive disciplinary actions (oral warning, then written, then probation).  However, sleeping on the job may qualify as willfully negligent misconduct which doesn't require progressive discipline.

She's trying to work on getting a co-worker to provide evidence, if needed, that she was not sleeping.  Any employment lawyers have any advice?

 
She should ask for copies of all her reviews if she does not have them. Heck, she should ask for her employee file and get copies of everything she can. I'm not a lawyer but I believe she has a right to do this. You will need to wait to see the results of the meeting before going too overboard. I agree that you attending would be a big mistake. You or a lawyer shouldn't get involved unless harsh actions are taken. I believe most states are free will states but with that being said the company I work for has still been sued for wrongful termination several times. Much of the time settlements are reached because companies would rather pay out something to have the matter settled than incur huge legal fees. Pretty much any time the terminated employee gets a little something, the company pays out at an expense and the lawyers are the winners as usual.

 
Before jumping to the conclusion she is getting terminated.  Why not just have her attend the meeting and take it from there. 

Maybe your wife gave her attitude when she was confronted and this meeting isn't even about the sleeping.

 
Johnny Bing said:
Before jumping to the conclusion she is getting terminated.  Why not just have her attend the meeting and take it from there. 

Maybe your wife gave her attitude when she was confronted and this meeting isn't even about the sleeping.
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There are other policies to handle that type of misconduct.  A meeting with HR is step 2 of their discipline. 

 
Seems like it would be pretty difficult to provide *evidence* that someone wasn't sleeping at the exact time another person is claiming they would. 

Agree that asking to attend is not wise. This isn't a kid being taken to the principal's office. 

 
My main point would be there is no sense in going on the offensive at this time. You showing up would be a horrible idea. If her work history is clean and she has glowing reviews she should make sure she has copies of everything in her file. If they terminate her there is no going back on that. You just then need to find a lawyer and determine if you can gain anything (severance pay) because the job is gone no matter what if they say they are terminating her. Your presence there isn't going to help in any way.

 
Thorn said:
:goodposting:  Her medical file shows a history of treatment of sleep issues, right?
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Yes.  She's on medication to help her sleep.

At the current time we're getting signed statements from two co-workers who were present at that time that she wasn't sleeping.  We're trying to stay away from any evidence that would suggest that she was tired or sick at the time. We have other evidence we can use (laser eye surgery and allergies) that can explain away having to close your eyes for extended periods of time.  

A sleep issue like Night Shift Worker Syndrome isn't an avenue that I would like to go down at this point.  Right now, should she be accused of it, categorically deny sleeping on the job and give reason why it appeared like she was sleeping with supporting proof she wasn't is the avenue we're going.

 
Snotbubbles said:
We have other evidence we can use (laser eye surgery and allergies) that can explain away having to close your eyes for extended periods of time.  
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This part seems like a problem. If they fire her for falling asleep on the job, are you going to sue for wrongful termination and claim she only had her eyes closed for (how long?) cause she has allergies?

Still seems like you're bringing a bazooka to a knife fight. Unless she was uncategorically passed out, it seems like they wouldn't move to fire her for this unless it wasn't the first time or something else was up that you don't know about. 

 
Full disclose, not a labor attorney, but oversee our HR department, and work closely with our labor attorney regarding employment issues.

My advice would be as follows:

Have your wife attend meeting alone. Absolutely no reason for you or anyone else to attend meeting.  If your wife was not sleeping, she should put it on the record, and categorically deny the accusation.  She is the accused and doesn't have to prove she wasn't sleeping, the burden is on the employer. If she was sleeping, now is the right time to come clean, otherwise if there is proof, video for example, she will be caught in a lie, which is worse than what they are alleging. Highly unlikely an employer would terminate employee for a one-off mistake like this, and if they did it could be grounds for a wrongful termination suit.

The offense of sleeping on the job, in and of itself, will not hold up in any labor dispute unless there is a pattern, of which has been documented and previously addressed with her.  Otherwise, if she is a model employee, with positive performance reviews, there is nothing to be concerned with.  Further, if she is > 40, she is a protected class, which means the bar for just cause for termination is even greater than a non protected class.

Bottom line, if there is no documentation of past issues, and your wife has never been previously disciplined, I wouldn't be overly concerned.  If she is terminated, and there is no documentation of poor performance, or other HR related issues, she would be in a good position for a wrongful termination suit.

gl

 
Ralph Furley said:
Full disclose, not a labor attorney, but oversee our HR department, and work closely with our labor attorney regarding employment issues.

My advice would be as follows:

Have your wife attend meeting alone. Absolutely no reason for you or anyone else to attend meeting.  If your wife was not sleeping, she should put it on the record, and categorically deny the accusation.  She is the accused and doesn't have to prove she wasn't sleeping, the burden is on the employer. If she was sleeping, now is the right time to come clean, otherwise if there is proof, video for example, she will be caught in a lie, which is worse than what they are alleging. Highly unlikely an employer would terminate employee for a one-off mistake like this, and if they did it could be grounds for a wrongful termination suit.

The offense of sleeping on the job, in and of itself, will not hold up in any labor dispute unless there is a pattern, of which has been documented and previously addressed with her.  Otherwise, if she is a model employee, with positive performance reviews, there is nothing to be concerned with.  Further, if she is > 40, she is a protected class, which means the bar for just cause for termination is even greater than a non protected class.

Bottom line, if there is no documentation of past issues, and your wife has never been previously disciplined, I wouldn't be overly concerned.  If she is terminated, and there is no documentation of poor performance, or other HR related issues, she would be in a good position for a wrongful termination suit.

gl
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Good point on the video. I would assume most hospitals have video cameras around. She's going to be much worse off if she goes nuts saying she wasn't sleeping and they whip out a video of her sleeping.

I agree with the others on this. Her best bet is to go in with her defense in mind, but see what they say first. No need for anyone but her to go.

 
Just an observation:

The picture you paint of your wife and her employment history seems incredibly positive.

You seem incredibly negative about this meeting and are coming across overly defensive.

Seems like there is something you aren't sharing otherwise there shouldn't be any cause for concern.

 
Snotbubbles said:
Yes.  She's on medication to help her sleep.

At the current time we're getting signed statements from two co-workers who were present at that time that she wasn't sleeping.  We're trying to stay away from any evidence that would suggest that she was tired or sick at the time. We have other evidence we can use (laser eye surgery and allergies) that can explain away having to close your eyes for extended periods of time.  

A sleep issue like Night Shift Worker Syndrome isn't an avenue that I would like to go down at this point.  Right now, should she be accused of it, categorically deny sleeping on the job and give reason why it appeared like she was sleeping with supporting proof she wasn't is the avenue we're going.
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So what's the truth?

 
When she goes to this meeting tell her to close her eyes as soon as they start talking to her. Have her not open her eyes again until they address her, at that point have her say "Amen", then have her say, " I am sorry I was praying, what were you saying?"

Case dismissed!!!

 
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Two words

simma down...

your wife ire is a strong person, give her some credit here and let her handle this meeting 

 
RUSF18 said:
Seems like it would be pretty difficult to provide *evidence* that someone wasn't sleeping at the exact time another person is claiming they would. 

Agree that asking to attend is not wise. This isn't a kid being taken to the principal's office. 
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If so wouldn’t it be equally as difficult to prove they were sleeping?

 
My wife asked me to attend.  Her supervisor called her and told her why she was meeting with HR.   It wasn't my idea to attend.  She's concerned because meeting with HR is an escalation of discipline that isn't standard procedure for normal infractions so she's worried.

I don't care if we have a wrongful termination suit against the hospital.  She is on the high end of the payscale and is halfway to a full pension.  Starting over, even with a wrongful termination award is still a loss here.  She'll have to go back to square one with pay and probably not have a pension at a new hospital since most have done away with them. 

 
Snotbubbles said:
My wife asked me to attend.  Her supervisor called her and told her why she was meeting with HR.   It wasn't my idea to attend.  She's concerned because meeting with HR is an escalation of discipline that isn't standard procedure for normal infractions so she's worried.

I don't care if we have a wrongful termination suit against the hospital.  She is on the high end of the payscale and is halfway to a full pension.  Starting over, even with a wrongful termination award is still a loss here.  She'll have to go back to square one with pay and probably not have a pension at a new hospital since most have done away with them. 
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So there's something more to this that either she isn't telling you or you aren't telling us.

Dozing off one time doesn't lead to this given her work history you relayed.

 
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Snotbubbles said:
My wife asked me to attend.  Her supervisor called her and told her why she was meeting with HR.   It wasn't my idea to attend.  She's concerned because meeting with HR is an escalation of discipline that isn't standard procedure for normal infractions so she's worried.

I don't care if we have a wrongful termination suit against the hospital.  She is on the high end of the payscale and is halfway to a full pension.  Starting over, even with a wrongful termination award is still a loss here.  She'll have to go back to square one with pay and probably not have a pension at a new hospital since most have done away with them. 
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I don't think you understand how a lawsuit works here.  Typically you would ask for damages which would include everything after the bolded. 

 
I worked at local brewery in college and we had a kitchen manager's wife come up and started screaming at the general manager, myself and a few people a day after the kitchen manager was fired. They were going to just let her speak her mind, but then she started threatening us and a few of the guys at the bar that were watching the scene and laughing. 

So not only did he lose his job, but he had to go bail his wife out of jail too. 

 
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I just figured out what was going on. 

The wife’s supervisor hates his job and is looking to get fired himself, and so is attempting to fire his best and most productive employee for dozing off once on her night shift. 

 
I think this thread has taken a turn the OP was  not expecting so he has quietly faded away.  There really has to be way more back story here that he is not willing to share.  Unfortunately I think we are in for a big let down.

 
sbonomo said:
I think this thread has taken a turn the OP was  not expecting so he has quietly faded away.  There really has to be way more back story here that he is not willing to share.  Unfortunately I think we are in for a big let down.
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Yeah what a snooze.

 
This supervisor sounds like a complete jerk for wanting to fire someone with a spotless record for snoozing on the job.  There has to be more to this story than that.  It seems like her supervisor has a vendetta against her if this is truly what is going on.  It's going to be miserable at this hospital going forward.  Sorry.

 
Terminated for "Sleeping while on duty".  She has 5 days to appeal the decision to Human Resources.  I did not attend the meeting and she didn't present any contradictory evidence in her favor. 

Working in our favor for the appeal:

1.  The supervisor did not confer with HR and made a unilateral decision.  Thus going outside the hospital disciplinary procedures.

2.  My wife requested the HR representative who advises employees in these types of matters to be present and was denied.  She also requested an additional supervisor to be present during the meeting and was denied.  The meeting was also not held with anyone from HR in attendance.

3.  She now has 4 co-workers who were working that day agreeing to be witnesses and give statements in her appeal that she was not sleeping.  

4.  My wife has an exemplary performance record.

5. We have hired an employment law attorney to advise us through the appeal process and potentially a wrongful termination suit should she lose the appeal.

 
Snotbubbles said:
Terminated for "Sleeping while on duty".  She has 5 days to appeal the decision to Human Resources.  I did not attend the meeting and she didn't present any contradictory evidence in her favor. 

Working in our favor for the appeal:

1.  The supervisor did not confer with HR and made a unilateral decision.  Thus going outside the hospital disciplinary procedures.

2.  My wife requested the HR representative who advises employees in these types of matters to be present and was denied.  She also requested an additional supervisor to be present during the meeting and was denied.  The meeting was also not held with anyone from HR in attendance.

3.  She now has 4 co-workers who were working that day agreeing to be witnesses and give statements in her appeal that she was not sleeping.  

4.  My wife has an exemplary performance record.

5. We have hired an employment law attorney to advise us through the appeal process and potentially a wrongful termination suit should she lose the appeal.
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I am in for the long haul. Go Team Mrs. Snottbubbles!

 
Snotbubbles said:
Terminated for "Sleeping while on duty".  She has 5 days to appeal the decision to Human Resources.  I did not attend the meeting and she didn't present any contradictory evidence in her favor. 

Working in our favor for the appeal:

1.  The supervisor did not confer with HR and made a unilateral decision.  Thus going outside the hospital disciplinary procedures.

2.  My wife requested the HR representative who advises employees in these types of matters to be present and was denied.  She also requested an additional supervisor to be present during the meeting and was denied.  The meeting was also not held with anyone from HR in attendance.

3.  She now has 4 co-workers who were working that day agreeing to be witnesses and give statements in her appeal that she was not sleeping.  

4.  My wife has an exemplary performance record.

5. We have hired an employment law attorney to advise us through the appeal process and potentially a wrongful termination suit should she lose the appeal.
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First, very sorry to hear.

Second, something still seems amiss.  Bad relationship with this supervisor?  This seems like it came out of left field.  Was there a bad patient outcome tied to this?

ETA -- Also, I thought you initially said she had a meeting with HR this morning. How was no one from HR in attendance?

 
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gianmarco said:
First, very sorry to hear.

Second, something still seems amiss.  Bad relationship with this supervisor?  This seems like it came out of left field?  Was there a bad patient outcome tied to this?

ETA -- Also, I thought you initially said she had a meeting with HR this morning. How was no one from HR in attendance?
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I feel like we are only getting a fraction of the story.  How does a boss go from giving out great performance reviews to firing someone with no warning?  Even if she was asleep, a superb employee would be given a warning or talking too.  Something just does not add up here.   

 
Snotbubbles said:
Terminated for "Sleeping while on duty".  She has 5 days to appeal the decision to Human Resources.  I did not attend the meeting and she didn't present any contradictory evidence in her favor. 

Working in our favor for the appeal:

1.  The supervisor did not confer with HR and made a unilateral decision.  Thus going outside the hospital disciplinary procedures.

2.  My wife requested the HR representative who advises employees in these types of matters to be present and was denied.  She also requested an additional supervisor to be present during the meeting and was denied.  The meeting was also not held with anyone from HR in attendance.

3.  She now has 4 co-workers who were working that day agreeing to be witnesses and give statements in her appeal that she was not sleeping.  

4.  My wife has an exemplary performance record.

5. We have hired an employment law attorney to advise us through the appeal process and potentially a wrongful termination suit should she lose the appeal.
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If this is even halfway true, the hospital/boss are in big trouble.  You cannot fire employees in this day and age without HR.  It just does not happen.  If he was so cavalier and did this on his own, I imagine he will soon be let go as well.  There are many things still amiss, I hope at some point we get the whole story. 

 
sbonomo said:
If this is even halfway true, the hospital/boss are in big trouble.  You cannot fire employees in this day and age without HR.  It just does not happen.  If he was so cavalier and did this on his own, I imagine he will soon be let go as well.  There are many things still amiss, I hope at some point we get the whole story. 
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I can only give the information that my wife gives me.  I neither work on her floor nor interact with her co-workers.  From experience, her detail sometimes have holes.  

She told me yesterday (maybe I mis-heard her) that it was a meeting with the supervisor and HR.  This is why I felt that the discipline was an escalation of the hospital policy and proceeded as if this was going to be a termination meeting.  I wanted her to go guns blazing with the HR manager present to defend herself.  Then, this morning when I drove her to the meeting (I waited in the car), she told me it was just her and her supervisor.  That's when I changed her meeting strategy and told her not to present contradictory evidence since I felt this was just a normal oral warning that requires a meeting.  But then she got terminated anyway and given 5 days to appeal.  At the appeal is where we'll have to present the witness statements and argue lack of procedure.   

 
sbonomo said:
I feel like we are only getting a fraction of the story.  How does a boss go from giving out great performance reviews to firing someone with no warning?  Even if she was asleep, a superb employee would be given a warning or talking too.  Something just does not add up here.   
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It's a hospital.  Sleeping is a pretty serious offense.  Patients' lives are at stake.

 
sbonomo said:
If this is even halfway true, the hospital/boss are in big trouble.  You cannot fire employees in this day and age without HR.  It just does not happen.  If he was so cavalier and did this on his own, I imagine he will soon be let go as well.  There are many things still amiss, I hope at some point we get the whole story. 
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We're waiting for the employment attorney to get back to us on the consult to see exactly what we can do.  I have the termination letter and there isn't anyone from HR copied or executing the letter.  Wife says there are no camera's on the floor.  If that is true, then there isn't any video evidence of her sleeping.  We will have co-worker evidence to contradict the supervisor.  It will be the supervisors word against like 5 other employees who were there. 

 
Wow, that's pretty stiff consequence for first time offender with perfect record.  Either there is more missing or the supervisor has it out for her.  

Maybe I missed it, but how long allegedly was she sleeping for?  We talking he walked into room and she had her eyes closed or he watched her for 10 minutes+.  

 
Johnny Bing said:
Wow, that's pretty stiff consequence for first time offender with perfect record.  Either there is more missing or the supervisor has it out for her.  

Maybe I missed it, but how long allegedly was she sleeping for?  We talking he walked into room and she had her eyes closed or he watched her for 10 minutes+.  
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My wife recount of what happened (paraphrase):

I was at the nurses station at the end of my shift waiting for the next nurse to come on duty so we could exchange patient information.  I closed my eyes for a second and supervisor comes up behind me, rubs my back and asks if I'm ok.  Told her I was feeling a bit ill and my eyes were burning.  Wife and supervisor then exchange holiday gifts.  Shift ends.  Wife gets home and gets a call from supervisor that she is not to come to work tomorrow and that they will be having a meeting on Friday about her sleeping during her shift.  During the call my wife asked if she was being terminated and the supervisor said she would speak with her on Friday.  Wife then asked for another supervisor to be present and was denied.  She then asked for the supervisor above this one (my wife has a good relationship with this supervisor as they confer periodically on suggestion to improve the hospital conditions) and was denied.  She then asked for the HR representative who handles employee meetings and was denied.  Then she personally called the HR representative who handles employee meetings and he told her he was not going to be in as he was on vacation for the holidays.  That's the story I got.    

 
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