Can Termination for Gross Misconduct Be Disputed

My question involves labor and employment law for the state of: Michigan

Over 40 years old. 14 years working for large and powerful pharmaceutical corporation.
I was terminated earlier this week. What should have been considered simple corrections in paperwork was elevated to the highest quality levels, on purpose, by a new supervisor who successfully ousted me despite my good record and otherwise. There was no written/final warning and the HR representative plainly stated that was something they did not have to do. This was given the term "gross misconduct" with a bonus of "Falsification of documents" and thus, no severance needs to be granted. Previously, I was expecting an "exceeds expectations" this year due to my participation from the year prior.

Now, after a lot of reading this forum and elsewhere, I get it. At-will employment = I am terminated. I will be applying for Unemployment come Monday.

I don't believe that I have committed any gross misconduct and certainly did not falsify documents intentionally. Is there any recourse for disputing this terminology? I want to make certain that I am doing everything I can to protect myself from future ramifications regarding my integrity.

I also just want to make sure I'm doing the right things. I signed nothing in the termination session (not asked to)and do not know if there will be any attempts to make me sign anything yet. I do not intend to sign anything with them. If I am asked to come in, is there a way to simply have representation while I am there?

I have considered writing letters to pertinent members in the company about the issue. I vacillate between this being either a waste of time and effort or that letting them know how I feel about that supervisor's actions might help someone else down the road.

Mostly, I just want to know if I'm missing any opportunities for recourse in this situation and that I'm not hurting myself by NOT doing something I'm missing. I want to move on from this as I've been quite miserable there for some time, but I need to know I'm covering all the bases first.

Thanks

What do you mean "falsification of documents"? Do you have those documents? If you don't, they are rather meaningless to you.

I think the only question is whether the employer's statement of "gross misconduct" disqualifies you from UC benefits.

If it does disqualify you initially, you'll have the opportunity to appeal.

Otherwise, don't bother writing to key people in the company because they will back the new supervisor rather than admit they made a mistake hiring him.

And don't be naïve enough to think that anything HR tells you is going to make a difference. HR works for management.

I don't want you to share everything OP, but could you give us a hint at what they're talking about?

(My background is clinical research/big pharma.)

If you are asking whether there is a law or a process you can invoke that will force your employer to restate your termination, there is not. You may ask. However, whether they agree or not is up to them. There is nothing you can do that will require them to do so.

Appreciate the quick replies!

Adjuster Jack: Thank you for your reply. I am expecting my UC benefits to be honored as there have been similar issues with people in the past that were able to collect. If not, I will certainly appeal. Regarding the letters, I agree with what you say. The separation between management and workers has always been large and I doubt anything positive would come from that either.
And yes, it's blatantly obvious to all of us there where the HR department stands and I find that to be a terrible shame as it goes against what the idea behind it stands for. There was no mediation.

Dogmatique: Thank you for responding. The issue was forgetting to fill in areas of paperwork during a run when I had not been on that area for over 8 months. What should have and always has been the method is flagging the paperwork for my correction upon coming in the following day, especially since that order had not even finished running yet. After the initial incident, I unfortunately had a similar event two days later when one of the pages was not with the other ones that I signed. I was sure I was being careful. I did everything as expected. In both these instances, another employee ran to the supervisor to show him my error even though after the initial incident he knew that was not the procedure. The "falsification" was declared in the termination session by producing the corrected page I had filled out and backdated to the previous day when I did the expected work, however, without a footnote. This document was labeled as "copy" Again, this is something that should have been flagged for correction. There was another copy of the same document that did not have my signature on it with the correction that was supposedly the original. I still do not understand what happened there exactly and I suspect something on the shady side was done. I do not have the documents. The termination session was very quick and brutal and I had no say. I hesitate to give further detail as I'm already concerned about identification with what I've said.

cbg: Thanks for the reply. It's been very frustrating to discover how little recourse we have as employees in an at-will corporation and I will be thinking twice before subjecting my time to any non-union employer in the future.

Having said that, I am well aware of Jack's prejudice against HR, but may I present a different view?

The average HR professional, or department, does not have the power that many people think they have. It is rarely, if ever, the decision of HR who to hire or fire, despite the fact that often the hiring letter or termination papers go out over their signature. HR often has the delightful task of advising management as to the wisdom or even the legality of a hiring or firing or discipline decision, only to see management completely ignore them. HR is not, as a rule, "for" either employees or management, but get to walk the line of trying to pacify both without having the actual power to make the final decisions.

If Jack would like to spend a day in HR, preferably either Benefits or Employee Relations, I guarantee that his attitude would change.

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Quoting cbg

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Having said that, I am well aware of Jack's prejudice against HR, but may I present a different view?

The average HR professional, or department, does not have the power that many people think they have. It is rarely, if ever, the decision of HR who to hire or fire, despite the fact that often the hiring letter or termination papers go out over their signature. HR often has the delightful task of advising management as to the wisdom or even the legality of a hiring or firing or discipline decision, only to see management completely ignore them. HR is not, as a rule, "for" either employees or management, but get to walk the line of trying to pacify both without having the actual power to make the final decisions.

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That's my point. HR people have no power. They are as much at the mercy of the bosses as any other employee. Regardless of how fine the line is, when push comes to shove, they do what the bosses tell them to.

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Quoting adjusterjack

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That's my point. HR people have no power. They are as much at the mercy of the bosses as any other employee. Regardless of how fine the line is, when push comes to shove, they do what the bosses tell them to.

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And they do that because they really don't ultimately have any other choice.

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Quoting another

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Appreciate the quick replies!

Adjuster Jack: Thank you for your reply. I am expecting my UC benefits to be honored as there have been similar issues with people in the past that were able to collect. If not, I will certainly appeal. Regarding the letters, I agree with what you say. The separation between management and workers has always been large and I doubt anything positive would come from that either.
And yes, it's blatantly obvious to all of us there where the HR department stands and I find that to be a terrible shame as it goes against what the idea behind it stands for. There was no mediation.

Dogmatique: Thank you for responding. The issue was forgetting to fill in areas of paperwork during a run when I had not been on that area for over 8 months. What should have and always has been the method is flagging the paperwork for my correction upon coming in the following day, especially since that order had not even finished running yet. After the initial incident, I unfortunately had a similar event two days later when one of the pages was not with the other ones that I signed. I was sure I was being careful. I did everything as expected. In both these instances, another employee ran to the supervisor to show him my error even though after the initial incident he knew that was not the procedure. The "falsification" was declared in the termination session by producing the corrected page I had filled out and backdated to the previous day when I did the expected work, however, without a footnote. This document was labeled as "copy" Again, this is something that should have been flagged for correction. There was another copy of the same document that did not have my signature on it with the correction that was supposedly the original. I still do not understand what happened there exactly and I suspect something on the shady side was done. I do not have the documents. The termination session was very quick and brutal and I had no say. I hesitate to give further detail as I'm already concerned about identification with what I've said.

cbg: Thanks for the reply. It's been very frustrating to discover how little recourse we have as employees in an at-will corporation and I will be thinking twice before subjecting my time to any non-union employer in the future.

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I can see why the employer called it "gross misconduct". I can also see though, where it may not be. Serious errors (and that would be the case here, generally) can create major problems for the employer. It's not just that mistakes were made - it's more that in this particular industry, even simple mistakes can lead to serious consequences.

Not always, Jack. There are some (I am one of them and I know others) who have put their job on the line when the employer is doing something illegal. But when it's legal, just not smart, well, HR folk have bills to pay too. What would you have us do?

To me, it seems that HR should be part of it's own contracted type of organization, as a government required entity expected to be funded by corporations with contracts relative to company revenue to eliminate corruption and act as mediation. Just an idea and I'm sure there's a million reasons that would never happen. Perhaps some sort of clause needs to exist when hiring HR representatives that actually gets enforced.

Dogmatique: I do understand what you're saying and I well understand the ramifications of serious errors in a pharmaceutical business. In my case, no product was truly endangered, there was proof that I performed my duties found after the fact and again, these are paperwork errors that have always simply been corrections in the past. Directly before I did the correction on the final paperwork, I had just had what could be considered a verbal with my supervisor and we had made agreements that I would take extra precaution in the future. I was a little disconcerted after the meeting when I was called to make the correction by one of my co-workers.

Questions that I have are: Should I go to retrieve my personnel file this week? Is that even necessary? Is it possible to have representation for simple activities like that?

I don't want any statute of limitations working against me in the future.

And again, thank you for the replies

Why do you need your personnel file so much you're willing to pay an attorney to help you get it?

It doesn't really matter - per Michigan law he's entitled to see it and make a copy of it.

eerelations: I honestly don't know what I need to do or don't need to do right now. That's what I'm trying to find out here. Am I hurting myself by NOT getting my file? I don't know what people are supposed to do when they get fired to protect/defend themselves and so far, it just seems like nothing. I don't want to do anything with this company alone without representation is all.

Dogmatique/others: Regarding the terminology of gross misconduct, I just don't understand how that can be justified from paperwork errors. I've looked up the term extensively and to me, gross misconduct indicates intentional harm(many aspects), discriminatory actions, fighting, stealing - even cursing inappropriately somehow. It's clear the company uses this term to prevent any sort of severance/other. I do not accept that I committed gross misconduct in my job or behavior and I don't like the idea that term will carry with me with suggestions of serious misconduct.

Gross misconduct isn't exactly spelled out. In Michigan, willful disregard of company rules/policy can be called "gross misconduct", but so can "grossly negligent" which clearly doesn't always involve a specific intent to harm.

I can honestly see it going either way as far as UI. The very nature of the industry does perhaps create a much higher expectation of its employees.

If you don't apply, you're not going to get UI - period.

If you do apply, the worst that can happen is that you're denied - so you won't have lost anything just for applying.

The UI commission will make up their own mind if you committed gross misconduct or not. They're not bound to use the employer's definition and they're not going to call it so just because the employer says so.

However, keep in mind that even if the UI office determines that they do not consider it gross misconduct and grants you UI, that does NOT mean that your employer is required to change their records or your personnel. They are entitled to their opinion and to let those records reflect that opinion, even if the UI office disagrees.

Gross misconduct is not defined by law in any state.

another, what are you seeking?

to the UI, if the employer challenges your filing, I suspect the initial determination will be a denial. If the employer has the stuff to back that up is something only LARA can say. If what you did has happened before and you were allowed to make the corrections without issue, that would play well for you as it makes this appear to be an escalation of punishment for an action they clearly accepted previously.

as to the severance pay: depending how it was offered originally, you may have a valid contest, through the courts, to seek that as well. If it was due to a contractual relationship, your contract will control. If this has happened before without concern, you have the same issue as with the unemployment. If the severance pay was an issue in a handbook or such, Mi has ruled previously that handbooks can rise to the level of a contract. If it can be shown that your actions were previously viewed as acceptable and suddenly a new and stricter interpretation was sprung on you without notice of the change, it may be able to be considered an attempt to act as they are simply to deny the severance pay. That is not something a court would view as generally acceptable.



Bankey v. Storer Broadcasting Co.), 443 N.W. 2d 112 (Mich. 1989)

additionally, if you believe there is no basis for a claim of gross misconduct, and the employer is disseminating that as the basis for your termination, the publication is tantamount to defamation and you may have an avenue through the courts to seek an injunction, if not actually altering the statement in your records, at least to cease disseminating it to prospective employers. While typically a former employer has very few limits on what they can say, they cannot spread falsehoods with impunity. The issue can come down to how gross misconduct is defined (and as cbg stated, it is not defined well anywhere) and if their definition is an extreme interpretation that the general business community would not agree with, it could allow for a courts intervention.

what you may be able to do is very fact specific so having a local attorney review the facts of the matter would be the best path to take.

OP, in your situation the only possible reason for you to obtain a copy of your personnel file is so that you can use it to change the company's stated reason for your termination from "gross misconduct" to something else. But given that it's not legally possible for you to change this reason, then you don't need to obtain a copy of your personnel file. Going to the trouble of obtaining your personnel file would be a waste of your time and energy. Paying an attorney to help you obtain a copy of said personnel file would be a waste of your time, energy and money.

There is nothing you can do now except apply for UI benefits and hope they are granted. Arguing with the expert volunteers here isn't going to change that.

I don't know that I agree with the above. If he's got good evaluations in the file and there are issues with his performance in future references, the evals might come in handy. Not all employers will look at them, granted in advance, but I'd rather have them available as not.

Yes I agree with you there. However given the OP's repeated insistence that he should be able to change his former employer's "gross misconduct" reason, I suspect that's what he's thinking he can use the file for. Just a suspicion, though.

Well, if that's what he's thinking, he's wrong. Nothing short of a court order is going to force the employer to change the "gross misconduct" reason and his chances of getting a court order to that effect are so slim as to be non-existent, IMO.

However, under state law he IS entitled to a copy and the sooner he requests it, the better.

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Quoting cbg

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Well, if that's what he's thinking, he's wrong. Nothing short of a court order is going to force the employer to change the "gross misconduct" reason and his chances of getting a court order to that effect are so slim as to be non-existent, IMO.

However, under state law he IS entitled to a copy and the sooner he requests it, the better.

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Does the court even have the power to do that?

If the answer is anything vaguely "yes"-ish, I'd be terrifically concerned about a slippery slope.

The only circumstances I can even imagine where a court might do that would be if there were a lawsuit (either for wrongful term, which this is not, or for defamation, which is unlikely at best in this case and not a factor at all as things presently stand), AND the employer lost AND the determination was found to be malicious AND as part of the settlement a neutral reference was negotiated, then MAYBE a court might order any references to gross misconduct be removed so that the record showed only misconduct.

I will agree that it is not likely their records must be amended but the courts could clearly prohibit the employer from claiming it was gross misconduct when responding to future prospective employers if the actions do not support the statement. Even if the employer believes it is gross misconduct, if the rest of the world doesn't, the use of the term is defamatory and could result in the op being denied employment. Opinion can be defamatory if presented as a fact and it causes damage.


But depending on prior treatment of similar situations, if there were any, it may not even be able to be labeled truly as misconduct as that has such a negative connotation and if the actions were previously not so egregious they were considered misconduct but rather simple error, even disseminating the claim it was misconduct could be problematic for the employer.

But it would have to GET to a court before a court could rule anything. And until or unless the employer blatantly misrepresents the situation (and gross misconduct is not really out of line in this case) and the poster suffers some form of damages as a result, there's no chance of it getting TO a court.

Absolutely as that is the only way I know of to obtain a court order.

If we can legally say, "Fred's attendance was exemplary, but he was fired for suspected theft", why then could we not discuss gross misconduct?

Whose definition must we use?

I'm trying to be realistic here. OP's situation is actually a good example. The average Joe wouldn't really have a clue as to what may or may not constitute gross misconduct in this industry, surely? You can make a couple of accounting errors in a paper company which really would have no far-reaching consequences, but if you make a couple of errors in this industry, you're actually at risk of the FDA getting involved and all manner of chaos raining down.

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Quoting Dogmatique

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If we can legally say, "Fred's attendance was exemplary, but he was fired for suspected theft", why then could we not discuss gross misconduct?

Whose definition must we use?

I'm trying to be realistic here. OP's situation is actually a good example. The average Joe wouldn't really have a clue as to what may or may not constitute gross misconduct in this industry, surely? You can make a couple of accounting errors in a paper company which really would have no far-reaching consequences, but if you make a couple of errors in this industry, you're actually at risk of the FDA getting involved and all manner of chaos raining down.

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the problem with your example is that the "suspected theft" was apparently treated as acceptable prior to this incident.

As I have said, if similar actions were not previously considered to be gross misconduct or even misconduct, if the employee was not given some notice the acts were being seen in a new light and would now be considered misconduct or gross misconduct, the prior acts of the employer can be relied on as acceptance the actions in question were not in fact misconduct. Prior conduct of the employer is a very important part of any of this. Calling it misconduct now as a basis of the termination is one thing as MI is employment at will and in the end, the reason for termination is irrelevant but publishing the misconduct, that was never treated as misconduct previously, would be an unfair and damaging situation for the employee. Letting somebody do something and allow them to believe it is acceptable and then going "surprise, we set you up over the last several years because it really was misconduct" is not going to be seen as misconduct by LARA or the courts IMO, if it ever got to that point.

based on this:

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The issue was forgetting to fill in areas of paperwork during a run when I had not been on that area for over 8 months. What should have and always has been the method is flagging the paperwork for my correction upon coming in the following day, especially since that order had not even finished running yet. After the initial incident, I unfortunately had a similar event two days later when one of the pages was not with the other ones that I signed. I was sure I was being careful. I did everything as expected. In both these instances, another employee ran to the supervisor to show him my error even though after the initial incident he knew that was not the procedure. The "falsification" was declared in the termination session by producing the corrected page I had filled out and backdated to the previous day when I did the expected work, however, without a footnote. This document was labeled as "copy" Again, this is something that should have been flagged for correction. There was another copy of the same document that did not have my signature on it with the correction that was supposedly the original. I still do not understand what happened there exactly and I suspect something on the shady side was done. I do not have the documents.

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either the OP had been flying under the radar for 14 years or his actions were accepted by management as not being misconduct. You don't get to yell; SURPRISE!! and treat them like they should have known it was unacceptable.

That's all well and good and may well lead to the poster receiving unemployment.

But as of this point, unless I missed something (feel free to point it out if I did) at present the employer has NOT disseminated the label of gross misconduct to anyone else. Not even the unemployment office, as the OP has not yet filed.

Until such time as the employer provides FALSE or MISLEADING information to a third party (which does NOT include the UI office, btw) AND the poster suffers damages as a direct result, there is no grounds for a lawsuit.

Lots of informative and helpful responses. Thank you for your continued attention and aid.

eerelations/cbg: Please understand I'm not trying to be argumentative. I am going through a period of frustration and anxiety with what's happened to me. I just want to understand my situation better and prepare myself properly. I will definitely be applying for UI tomorrow and am looking forward to moving beyond this and finding better opportunities. I do not want to dwell on this part of my life any longer than I have to, but that doesn't stop me from having the feelings of victimization that I'm experiencing. I fear a day when I am turned down from an opportunity due to past history of "gross misconduct". So, I realize with this thread and your helpful answers that my options are severely limited if there are any at all. I'm still unsure if I should go for my personnel file. Yes, I should have good evaluations in there, but I honestly don't want to go anywhere near that place ever again.

Jk: Regarding the practices, it gets complicated because, yes, flagging the correction for errors is the accepted practice and always has been. Yet, I'm not the first employee that this has happened to(2-3 others) as this is apparently the method they use when deciding to get rid of someone. So, I don't know if their termination could be considered previous examples of that even though it's seemingly cherry picked with the supervisors that want that person out. I do think the terminology should be better defined as I believe it's abused as a method of termination, but it's clear to me now that such a possibility is highly unlikely. I'm curious as to what would need to happen for this kind of change to be brought about because now I'm wondering how many lives get affected this way.

Dogmatique: Yes, the pharmaceutical business has a great deal of additional requirements and small errors can become very large ones. The sheer amount of re-work I've participated in over the years has made that evident. I'm hopeful that my experience with all of that will help me find new opportunities.

Again, thank you for your replies. Hopefully, I'll receive my UI with no issue and will keep you posted if you're interested. This has been a very informative, although somewhat disheartening thread for me.

Good luck - if you wouldn't mind posting again to (hopefully happily!) tell us how UI went, that would be really good :)

I don't think you're argumentative at all.

As an HR professional, I can't see any downside to asking for a copy of your file. It's your decision, of course, but I don't see a problem with it.

http://www.legislature.mi.gov/(S(gw1...me=mcl-423-504

There's the specific law regarding it.

I understand your concern, but there's really no benefit to expending this much energy at this point about what might happen in future. No prospective employer is going to see your personnel file, I can promise you that.

And a prospective employer who, upon hearing the words "gross misconduct" doesn't inquire further to find out EXACTLY what the former employer is classifying as such (and form their own opinion) isn't an employer I'd want to work for. This is even assuming that the former employer uses the term, gross misconduct, in a reference, which is very, very far from guaranteed.

That's what I kept trying to explain. Just because it is in your personnel file does NOT mean that prospective employers will be given that information.

Just replying to let you all know that I have begun receiving my UI benefits as of last week. Boy! That's a process!. At any rate, while at the local office, I was able to see the letter regarding termination from my employer. The letter did not state either misconduct or falsification of documents and was more of a form based termination. I was quite relieved to see that. It does, however, make it clear to me that this whole thing was related to my boss.

So, whatever. It's done and much worse things happen to people all the time, so I'm moving on, happy to be away from that environment and all the disappointment I received there over the last 14 years. I do think that there needs to be more rights for the worker, and increasingly so as these corporations grow in power as the years pass.

I want to thank you again for all your responses. You were very helpful during a time of duress and frustration and you're doing good things for people in these situations.

Glad it worked out for you!