Sorry for not including it in the title, but my question is: Does she need to be physically at the company for the firing? She wants to avoid the humiliation of being escorted out of the building.
Back Story. After 25 years of a stellar work record (President’s Award, Promotions, etc.), my friend is being fired because she is approaching her 55th birthday. At 55 one begins to qualify for a pension from the company, something that apparently it can’t afford. About 2 years ago a new manager was brought in to nick pick her work and generally make her life miserable. Hopefully to the point where she quits.
Finally this month she was given notice that because of her “poor work performance”, she was being given one month for evaluation. If she didn’t improve, she would be terminated. The writing is clearly on the wall. She is going to be fired.
She was asked to resign. If she does, the company has offered to help find someone to assist her in writing a resume. The real reason they want her to resign is that if she is fired, (with her work record with the company) she will be able to collect unemployment insurance and the company’s insurance rates will go up.
She is out sick now and just doesn’t want to go back and have to face the assholes who are firing her. She is afraid that if she doesn’t go back, she could be terminated for not showing up at work and this would not look good at her unemployment compensation hearing.
After 25 years, it seems like she’d be vested in any retirement plan. Unless the company is completely self-paying. Has she received yearly notices from the retirement plan?
Unless the company has raided the retirement plan and then goes bankrupt, her years of service should entitle her to more.
IANAL, but AFAIK not going back to work is quitting - possibly/probably rendering her ineligible for unemployment (maybe she’d win at a hearing/appeal, maybe not) - unpleasant as it may be I think she should keep going in for as long as she’s actually got a job.
Unfortunately, she does need to go back to work. Not showing up for work is grounds for termination.
I feel for your friend; she’s getting a raw deal. She needs to walk in with her head high and make them feel like crap - and then go file for unemployment. Depending on the state she might want to have a chat with an attorney about wrongful dismissal.
She has about $300,000 in the company 401K and about $120, 000 in her pension. She will be forced to take the pension as a lump sum. The company wants to avoid allowing her to work there when she turns 55. If she did turn 55 while still there, she would qualify for a “real” pension, meaning money for the rest of her life from the company.
She did talk to an attorney and was told as long as they were firing her because of poor work performance, there is nothing that can be done.
I was involved in a termination suit once. The company had better have a record of performance reviews showing poor performance. They also had better have shown them to her and had her sign them. If they have some sort of performance improvement process, they also must let her participate. This is not true if she has committed a documented immediate termination offense, which not showing up might be.
She is old enough to be a protected class. If after years of good performance she is suddenly not performing as she approaches 55, the local EEOC might be very interested. A lawyer (which I am not) might not be because not much money is at stake here.
This was my first thought too. After 25 years’ service she should have a significant vested benefit. Does she have a copy of the fund’s rules/trust deed? She needs to speak with the administrators of the fund.
She needs to consult an attorney who specializes in employment law. Unless the company has been planning this for a long time and had done its own homework very carefully, she is going to have a very good case.
I had a similar situation, worked over 20 years for a company, had an excellent service record, and was fired over a technicality that was essentially my boss’ fault. In actuality I was let go because I made too much money (our raises were based on, among other things, yearly performance reviews). And even though they couldn’t deny me unemployment, they did cheat me out of nearly $4000 in unused paid time off.
I live in New York state which is officially an “at will” employer, meaning that you can be fired for any and/or no reason whatsoever, aside from blatant discrimination. I filed an age-based discrimination complaint but nothing came of it. However mine was pretty tenuous as I was only 44 and there wasn’t really much evidence of it. I essentially filed it hoping I might find a sympathetic ear on the NYS Labor Board, and to hassle and harass my former employer.
Your friend’s case sounds a lot better than mine though. I would have gone the attorney route but I simply didn’t have the resources. Your friend absolutely must report back to work or it will be case closed. Also I don’t think they can force her to cash out her 401K. She should be able to leave it or roll it over.
File a complaint with the Human Rights body in your state if/when she is let go. If you can show this is a pattern, people approaching 55 get harrassed to quit or are fired, then they should do something about it.
If she stops showing up to work, she is playing into their hands. She is giving them what they want. Abandoning a job is grounds for dismissal, and once you quit, the company has a better argument against age discrimination - “We did not fire her, she quit on her own.” Then it would be up to her to show that she quit from harrassment. If she shows up, endures the harrassment secure in the knowledge they are assholes and it’s not her fault, let them do their worst, collect and document the harrassment (keep a journal!) and take that to the human rights commission… better case.
It’s not humiliating to be escorted out if everyone knows it’s because the employer is the problem.
Besides, if they are determined to get rid of her, why not stick it out for as long as she can - for the money, plus, the closer she gets to 55, the better her case.
How close is she to turning 55? Could she come down with an acute case of appendicitis or something similar? You know, just at the right time she remains employed but out of the office until she actually turns 55.
The "after 25 years of a stellar work record"part of the OP contradicts this, unless we’re going to start picking at the OP’s veracity, which makes the discussion meaningless.
Technology and the pace of business changes rapidly. Unfortunately, not everyone can keep up and some get left behind. I see it all the time in my industry (advertising). It’s not an unreasonable question.
OP, does the company have a history of firing people when they near 55? Is it a pattern of behavior?
My brief stint in state government I worked with lots of people in the 55-65 age range who were “old enough to collect their pension but had no outside life so kept working anyway” and while some of them were legitimately very good at their jobs for many, many years a lot of them by that point frankly sucked at their jobs. They had refused to follow many of the developments in their area that would be required to maintain competency and many of them had even refused to learn basic technology improvements that were more or less mandatory skills to function in an office environment.
Not anything to do with the OP, but like you I don’t see 25+ years of service as any guarantee she is still doing a good job.
This makes me so angry, because I was the most technically adapt person in my department. When a new system came online I grabbed the documentation and jumped right in. Everyone else groaned. Without anyone asking I made it my job to create user-friendly documentation for all the others. When they decided everyone in my dept had to be A+ certified everyone studied and memorized and memorized, but still all failed miserably. I not only passed with little prep, but scored very high. Kind of stuff that showed how exceptional I was, but also the kind of stuff that meant absolutely nothing whatsoever to management. :mad:
I sympathize with the OP’s friend, being fired is pretty traumatic. I fully expected to work at my company the rest of my life. When my manager first told me I literally though he was joking and wanted to say “April 1st was last month!”
It is perfectly possible for anyone to start to suck at any time, but especially for someone at 55 it had better be documented. If the bosses are too chicken shit to give anyone a bad review (which happens) the company is not going to have a good argument.
