Hopefully, some of our legal minds can help out. Disclaimer: none of you are my or my daughter’s attorneys, nor will I identify any of you in any fashion later on.
As many of you know, one of my sons died recently. My daughter and he were the best of friends and she, like other family members, took time off to deal with his illness and death. In the case of my daughter, she asked her boss for, and received an email granting, “whatever time you need” to deal with matters. She has not been working at this Wisconsin company very long, so does not qualify for FMLA and had no annual leave accrued.
She just found out that he interviewed someone for her job in her absence. In addition to being a heartless, asshole thing to do, it seems to me that she has some room for a wrongful termination lawsuit if he follows through on this. There has also been an element of sexual harassment from the owner, which has been witnessed by other employees.
My question is: would you, as an attorney, advise a client to pursue this, or drop it?
Has she been in touch with him during this time to keep him apprised of what is happening and how long she might be gone?
I agree with PastTense that she needs to reach out now and talk to him about when she’ll be back. “As much time as she needs” doesn’t reasonably mean she can take months off.
She will be talking to him on Monday (which is her first day back at work), as she just learned of this from another employee. I hope that he has a good explanation for this. And yes, she has kept him informed. My questions are a precaution in case she needs to look at finding legal representation.
I would not bring this (interviewing a possible replacement) up to the boss. He will just get defensive. Drop it unless she loses her job. And in “at will” state, unless they specifically say “we are terminating you as you took too much time off” they can terminate at will ( EEO, retaliation and harassment issues are a exception.) If want to get rid of her and just say “sorry we are letting you go, here’s your normal several package” she likely has no grievance.
However, she should think seriously about the harassment issue. I would start by talking to higher up, or HR*, or the EEO officer and discuss a hypothetical.
Regarding the harassment, she needs to document everything. Dates, times, and description. She should make sure the record is some place she will still have access to it should she get walked out (i.e., terminated) unexpectedly).
Just playing Devil’s Advocate here, but if I were the boss, and an important employee looked likely to be leaving, regardless of reason, I might be inclined to interview possible replacements as a hedge, nothing more. That doesn’t mean I would be firing the first party.