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  1. #1
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    Jan 2017
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    Default Unpaid Suspension, EAP Review, and a Sexual Harassment Accusation

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

    So, I was training a temp and on her third day on the floor she went to the supervisor and accused me of sexual harassment. I asked the supervisor what was being claimed I said, he wouldn't tell me anything besides "It involves sex and children". He told me I was being sent home and that HR would contact me Monday. This all happened on a Friday, for a time frame. I asked him if I was being suspended, he said he couldn't answer that. I foolishly said something about shooting myself before I left. He had a local police officer come by and do a wellness check.

    Fast foward.

    I went to my workplace Monday an hour before my shift was due to start because HR still had not contacted me. I asked the receptionist if I could speak to HR and she said "She'll contact you at home". I told her it wasn't made clear if I had been suspended or not. She said it was her understanding that I had been. So, I've been here. HR finally called and told me that because of my suicide comment they wanted me to be evaluated by their EAP before I could return to work. They set up an appointment with a psychologist that Friday. He said there didn't seem to be anything unusual going on but I still had to do an evaluation.

    I've since called my workplace twice and gotten no reply, called the psychologist office and they said the EAP had gotten my test earlier this week. I've now been on suspension for almost three weeks.

    I've already contacted a lawyer here, she said if I'm not allowed to return to work to call her. I record all of my calls. I do have depression, am seeing a psychiatrist and have been on a prescription for it for about 3 months.

    My questions!

    Is being on unpaid suspension this long legal?
    Since I have it recorded that I would be allowed to return to work, does that consitute a verbal contract?
    If they choose to fire me over the allegations could I sue the accuser for slander? Would I be able to use character witnesses to prove my case?
    If I were to win that case would I be able to sue my employer for wrongful termination?
    Do I need to let the other party know that I'm recording the call at the start of the conversation, let them know at all or does it not matter?
    Am I entitled to any backpay if I'm found "not guilty" of the accusations?
    Am I supposed to be placed on administrative leave or anything like that?

  2. #2
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    Oct 2014
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    Default Re: Unpaid Suspension, EAP Review, and a Sexual Harassment Accusation

    There are some details you left out that could be significant here. Is the employer a government agency? Are you a member of a union that has a collective bargaining agreement with your employer? Are you an exempt employee? For the purposes of my answers below, I’ll assume the answer to all three of of those is no. If that’s not correct that could change things.

    Quote Quoting isullivan
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    Is being on unpaid suspension this long legal?
    Yes. You could be on unpaid suspension forever, in theory. That would basically mean you were terminated. An employer does not have to say “you're fired” for you to be effectively terminated. Simply not ever allowing you back to work amounts to the same thing. You have been out of work for 3 week because your employer will not schedule you for work rather than a choice by you not to work. You may qualify to get unemployment benefits while you wait out the company to see if it will take you back.

    Quote Quoting isullivan
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    Since I have it recorded that I would be allowed to return to work, does that consitute a verbal contract?
    You have not said what the exact conversation was and with whom you had it. But almost certainly the answer will be no. Very likely not all the elements of a valid contract were met. Even if they were, it doesn’t help you much because the employer can change its mind again and fire you in an instant unless you have an employment agreement that guarantees employment for some set period of time (e.g. one year, 5 years, etc).

    Quote Quoting isullivan
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    If they choose to fire me over the allegations could I sue the accuser for slander? Would I be able to use character witnesses to prove my case?
    You may sue the accuser for slander if you wish. The question is whether you could win, and we don’t have the facts to make any good guess on that. A lot depends on exactly what she told the employer. And, of course, if what she said was true it would not be slander.

    Quote Quoting isullivan
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    If I were to win that case would I be able to sue my employer for wrongful termination?

    No. The employer is free to terminate you for believing the other employee’s claim even if turns out the other employee was wrong. Most employment in the U.S. at “at will” which means that the employer doesn’t need a good reason to fire you. All that matters is that the reason for firing you is not among the relatively few reasons that the law prohibits. The prohibited reasons include firing you because:
    • of your race, color, religion, sex, national origin, citizenship, age, disability, or genetic test information under federal law (some states/localities add a few more categories like sexual orientation);
    • you make certain kinds of reports about the employer to the government or in limited circumstances to specified persons in the employing company itself (known as whistle-blower protection laws);
    • you participate in union organizing activities;
    • you use a right or benefit the law guarantees you (e.g. using leave under FMLA);
    • you filed a bankruptcy petition;
    • your pay was garnished by a single creditor; and
    • you took time off work to attend jury duty (in most states).


    The exact list of prohibited reasons will vary by state. So unless you are terminated for some reason like those listed above, the termination is not “wrongful” in the legal sense.


    Quote Quoting isullivan
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    Do I need to let the other party know that I'm recording the call at the start of the conversation, let them know at all or does it not matter?
    Michigan’s law on recording conversations is such that the details of the recording matter a lot. The statute with respect to in-person conversations has been interpreted by an appeals court in that state to allow recording without the consent of the other parties so long as the person recording is one of the parties to the conversation. But another statute makes it illegal to hook up a recording device to a telephone system without the consent of all the parties to the conversation, so it would appear that for a phone conversation you may indeed need the consent of the other people on the call. If so, you commit a crime in recording a phone call without getting that consent. Here, I would advise you to get advice from a Michigan attorney before recording any further telephone calls without first getting consent from the other person(s) on the call.

    Quote Quoting isullivan
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    Am I entitled to any backpay if I'm found "not guilty" of the accusations?
    Not by law. An employer is only legally obligated to pay you for the actual time you worked. So you aren’t entitled to pay for the time you have been suspended and not working. An employer may, of course, have a policy to pay you for that, but that’s entirely up to the employer.

    Quote Quoting isullivan
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    Am I supposed to be placed on administrative leave or anything like that?
    The law does not require anything like that. Again, the employer is not required to pay you for time you are not working.

  3. #3
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    Jan 2017
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    Default Re: Unpaid Suspension, EAP Review, and a Sexual Harassment Accusation

    Quote Quoting Taxing Matters
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    There are some details you left out that could be significant here. Is the employer a government agency? Are you a member of a union that has a collective bargaining agreement with your employer? Are you an exempt employee? For the purposes of my answers below, I’ll assume the answer to all three of of those is no. If that’s not correct that could change things.
    No, they're a private business although they do have government contracts. I've heard they've threatened to fire employees over talking about joining a union before but I have my doubts about that. I am a non-exempt employee, whatever that means.

    Quote Quoting Taxing Matters
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    You have not said what the exact conversation was and with whom you had it. But almost certainly the answer will be no. Very likely not all the elements of a valid contract were met. Even if they were, it doesn’t help you much because the employer can change its mind again and fire you in an instant unless you have an employment agreement that guarantees employment for some set period of time (e.g. one year, 5 years, etc).
    The conversation was with the facility's HR manager. She said they wanted me to be evaluated by a psychologist, and that they'll find one despite me having a psychiatrist of my own. She also said that once I'm cleared through the psychologist and EAP I'll be allowed to return to work. She used the phrase "return to work". This is part of why I record my calls, largely for my own reference. It's actually an app on my phone. It automatically records them all.

    Quote Quoting Taxing Matters
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    You may sue the accuser for slander if you wish. The question is whether you could win, and we don’t have the facts to make any good guess on that. A lot depends on exactly what she told the employer. And, of course, if what she said was true it would not be slander.
    Since they wont tell me what she said I don't know for certain but my friends who still work there tell me she said I claimed something, and it's a bit grotesque and offensive so be warned, "smelled like a freshly ****ed five year old". The time she claims I said that was almost a full 24 hour before she reported her claim. It was near some incredibally loud machinery which obstructs anyone hearing anything that isn't yelled at them from more than 10 feet away. We're also required to wear ear plugs while on the floor. No one was around when her claim would have occurred either. It's her word against mine. As I stated earlier, she had also been a temp for all of three days at that point.

    Quote Quoting Taxing Matters
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    Michigan’s law on recording conversations is such that the details of the recording matter a lot. The statute with respect to in-person conversations has been interpreted by an appeals court in that state to allow recording without the consent of the other parties so long as the person recording is one of the parties to the conversation. But another statute makes it illegal to hook up a recording device to a telephone system without the consent of all the parties to the conversation, so it would appear that for a phone conversation you may indeed need the consent of the other people on the call. If so, you commit a crime in recording a phone call without getting that consent. Here, I would advise you to get advice from a Michigan attorney before recording any further telephone calls without first getting consent from the other person(s) on the call.
    I use an app on my phone that automatically records all of my calls. No external devices are being connected. I'm not sure if that helps or not.

  4. #4
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    Default Re: Unpaid Suspension, EAP Review, and a Sexual Harassment Accusation

    Quote Quoting Taxing Matters
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    But another statute makes it illegal to hook up a recording device to a telephone system without the consent of all the parties to the conversation....
    Do you have a citation for that statute? Thanks.

  5. #5
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    Default Re: Unpaid Suspension, EAP Review, and a Sexual Harassment Accusation

    Quote Quoting Mr. Knowitall
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    Do you have a citation for that statute? Thanks.
    After looking at the statute in question again, it is not clear on whose authorization is required. MCL 750.540(1) provides:

    “(1) A person shall not willfully and maliciously cut, break, disconnect, interrupt, tap, or make any unauthorized connection with any electronic medium of communication, including the internet or a computer, computer program, computer system, or computer network, or a telephone.”

    It is certainly possible that a court might say that the tap or connection being made must have authorization from all the affected parties, but it’s not clear from the statute that is the case. Again, I would urge the OP to ask a Michigan attorney about how the state’s law would apply to the exact circumstances of his recording before proceeding.


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