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  1. #1

    Question Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

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

    I've been working with my employer for about 2 years. Everything was great until......I revealed my medical condition

    Another employee and I was required to work 2 different departments. The reason why I am mention this particular employee is because: we have the same supervisor, we are required to work the same 2 departments, same job title/duties and our monthly average are within the same range of each other. We are both required to work about 3 in the other department and finish the day off in our assigned departments.

    The workers in our assigned department are required to have a monthly average of 100% or higher. When an employee is assigned to other department the average is usually taken down a few and its flexible. Before I go any further I will say I am not the combative person I will usually just go along with things and not put up much of a fight in hoping things will get better. In this situation I was surely wrong as you will continue to read.

    My supervisor was noticing me using my sick time a lot. So he asked me why, I revealed him to that I had a medical condition this was around late June and early July. The PIP came a few weeks after that and processed after that. I was told that my performance fell below standard (100%) I have always been in the high 90's% range. Also they had me working another department; so how can you question me not performing well in my assigned department but requiring me to do other assignments. << I saw this as a sign for me to fail.

    I've received 3 more PIPS after that with the last one being a final one. Surprisingly they finally decided to let me work my assigned department after issuing me my final. I also found it odd that human resources, the manager and my supervisor all signed the PIP 6 days before I was even notified about it. So I decided to ask the other employee if he's had been written up and he said no that all the supervisor told him before that he had to try to get a high number and that he only got a verbal written when I received my final. I saw this as a cover up so they can say "well we gave this employee one too".

    So I starting think what changed. I don't give my employer a hard time, I show up to work, I never complained about have to bounce back from departments to departments. Than I realized that everything start once I told my supervisor and HR about medical condition and started getting medical leave for it.

    I've also gotten written up for misconduct for something that that my supervisor set up me to do. So my supervisor told me clock out earlier than my scheduled time and I did. The next day I was written up for misconduct for not telling him that I was clocking out early when he instructed me to do it.

    So I saw the writing on the wall now they have an agenda to get rid of me and want a paper trail to cover it. Funny thing (not really funny) is that they don't need a reason to fire me because I'm an at will employee. There was no need for them to harass me and create a hostile work environment for me. I don't think I deserved that for revealing my medical condition.

    I also ask my supervisor about the PIP and he admitted to me that he didn't really knew how they worked. I also looked high and low for it in the handbook and realized that they don't have a policy or procedure on how it works so its like they can make up the rules about it as they go along. For my final PIP warning they used the average of last two wks in Dec and the first two wks in Jan. So I asked my supervisor when the next one will done. He started that they should use the last two wks of Jan and the first two wks of Feb but said that it depends on how they feel and they might just use the whole month of Jan. Than I realized again that its not about improving because how can I improve the past 2 weeks which you already factored into my final and just proves to me that they make up the rules as they go along.

    ____________________________________________

    So I never trusted management at the company since I started. They seemed deceiving but nothing that I could place my finger on. So I recorded all conversations I had with management as long as I had the opportunity. With the help of my phone it was just a swipe away.

    -Before telling my supervisor about my medical condition he told he that the rules for the standard is flexible and its not black and white and very gray. He said that as long as you're in the high 90's% it will be fine. << I got that on record

    -At the time when he pulled me in the office for the misconduct write up; I explained to him that I did it because he told me to do it and he replied back with "yeah I know" but proceeds to write me up. << I got that on record

    -The time he was telling me that he doesn't know how the PIP work and they can pick and choose which weeks they use to get your average and it depended on how they feel. << I got that on record


    At this point I am not sure if it would serve any purpose to make an internal complaint to HR about harassment because it seems like they are all in cahoots. Should I resign or just let the fire me? I am trying to look for a new job but nothing as of yet. It messes with your mind when you know you're being set up to fail and they keep telling you "oh we're here to help you".

    Thank for any advice in advance

  2. #2
    Join Date
    Oct 2006
    Posts
    15,994

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    Quote Quoting Subwaysurfer
    View Post
    My question involves labor and employment law for the state of: New York

    I've been working with my employer for about 2 years. Everything was great until......I revealed my medical condition

    Another employee and I was required to work 2 different departments. The reason why I am mention this particular employee is because: we have the same supervisor, we are required to work the same 2 departments, same job title/duties and our monthly average are within the same range of each other. We are both required to work about 3 in the other department and finish the day off in our assigned departments.

    The workers in our assigned department are required to have a monthly average of 100% or higher. When an employee is assigned to other department the average is usually taken down a few and its flexible. Before I go any further I will say I am not the combative person I will usually just go along with things and not put up much of a fight in hoping things will get better. In this situation I was surely wrong as you will continue to read.

    My supervisor was noticing me using my sick time a lot. So he asked me why, I revealed him to that I had a medical condition this was around late June and early July. The PIP came a few weeks after that and processed after that. I was told that my performance fell below standard (100%) I have always been in the high 90's% range. Also they had me working another department; so how can you question me not performing well in my assigned department but requiring me to do other assignments. << I saw this as a sign for me to fail.

    I've received 3 more PIPS after that with the last one being a final one. Surprisingly they finally decided to let me work my assigned department after issuing me my final. I also found it odd that human resources, the manager and my supervisor all signed the PIP 6 days before I was even notified about it. So I decided to ask the other employee if he's had been written up and he said no that all the supervisor told him before that he had to try to get a high number and that he only got a verbal written when I received my final. I saw this as a cover up so they can say "well we gave this employee one too".

    So I starting think what changed. I don't give my employer a hard time, I show up to work, I never complained about have to bounce back from departments to departments. Than I realized that everything start once I told my supervisor and HR about medical condition and started getting medical leave for it.

    I've also gotten written up for misconduct for something that that my supervisor set up me to do. So my supervisor told me clock out earlier than my scheduled time and I did. The next day I was written up for misconduct for not telling him that I was clocking out early when he instructed me to do it.

    So I saw the writing on the wall now they have an agenda to get rid of me and want a paper trail to cover it. Funny thing (not really funny) is that they don't need a reason to fire me because I'm an at will employee. There was no need for them to harass me and create a hostile work environment for me. I don't think I deserved that for revealing my medical condition.

    I also ask my supervisor about the PIP and he admitted to me that he didn't really knew how they worked. I also looked high and low for it in the handbook and realized that they don't have a policy or procedure on how it works so its like they can make up the rules about it as they go along. For my final PIP warning they used the average of last two wks in Dec and the first two wks in Jan. So I asked my supervisor when the next one will done. He started that they should use the last two wks of Jan and the first two wks of Feb but said that it depends on how they feel and they might just use the whole month of Jan. Than I realized again that its not about improving because how can I improve the past 2 weeks which you already factored into my final and just proves to me that they make up the rules as they go along.

    ____________________________________________

    So I never trusted management at the company since I started. They seemed deceiving but nothing that I could place my finger on. So I recorded all conversations I had with management as long as I had the opportunity. With the help of my phone it was just a swipe away.

    -Before telling my supervisor about my medical condition he told he that the rules for the standard is flexible and its not black and white and very gray. He said that as long as you're in the high 90's% it will be fine. << I got that on record

    -At the time when he pulled me in the office for the misconduct write up; I explained to him that I did it because he told me to do it and he replied back with "yeah I know" but proceeds to write me up. << I got that on record

    -The time he was telling me that he doesn't know how the PIP work and they can pick and choose which weeks they use to get your average and it depended on how they feel. << I got that on record


    At this point I am not sure if it would serve any purpose to make an internal complaint to HR about harassment because it seems like they are all in cahoots. Should I resign or just let the fire me? I am trying to look for a new job but nothing as of yet. It messes with your mind when you know you're being set up to fail and they keep telling you "oh we're here to help you".

    Thank for any advice in advance
    Do not resign. You won't be able to collect unemployment. If they try to claim that you were fired for a misconduct reason and therefore try to deny you unemployment, take it to appeal. Don't give them any true misconduct reason for firing you.

    You might even talk to an employment attorney about this all starting right after you revealed your medical condition.

  3. #3
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,261

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    A few questions:

    What in your working conditions would need to change for you to accomplish all the essential functions of your position? I do not mean, for the supervisor to get off my back. I mean schedule changes? Different equipment? Flexible work hours? What?

    How much time have you missed in the last 12 months due to this medical condition?

    How many employees does this employer have within 75 miles of your location?

  4. #4

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    The changes were flexible work hours.

    Maybe about 15 days

    It's a franchise so about 1,000 if not more

  5. #5
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,261

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    At any time, did you inform your supervisor or HR that you needed flexible work hours because of a medical condition? I don't mean in response to a question, telling them that you have x condition; I mean, formally identifying yourself as being disabled by x condition and requiring flexible work hours as an accommodation? And in the context of your position, would flexible work hour adversely affect other employees or no?

  6. #6

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    Quote Quoting cbg
    View Post
    At any time, did you inform your supervisor or HR that you needed flexible work hours because of a medical condition? I don't mean in response to a question, telling them that you have x condition; I mean, formally identifying yourself as being disabled by x condition and requiring flexible work hours as an accommodation? And in the context of your position, would flexible work hour adversely affect other employees or no?
    Yes, plus I requested intermittent fmla. Once I got approved for it, that's when the PIPs and harassment progressed.

  7. #7
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,261

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    Then I'd say you should be talking to an employment attorney at this point regarding your best options.

  8. #8
    Join Date
    Oct 2014
    Posts
    7,734

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    Quote Quoting Subwaysurfer
    View Post

    It's a franchise so about 1,000 if not more
    If I assume from your member name that you worked for a Subway shop franchise, then I want to be sure you understand what cbg is asking. She is asking how many employees your particular franchise owner has within 75 miles of your shop. Don't count Subway shops that are not owned by your franchise owner. If your franchise owner owns just one shop, then it's the number of employees of that one one Subway shop. Subway employees at franchises are employees of that franchise owner, not of Subway itself.

  9. #9

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    Quote Quoting Taxing Matters
    View Post
    If I assume from your member name that you worked for a Subway shop franchise, then I want to be sure you understand what cbg is asking. She is asking how many employees your particular franchise owner has within 75 miles of your shop. Don't count Subway shops that are not owned by your franchise owner. If your franchise owner owns just one shop, then it's the number of employees of that one one Subway shop. Subway employees at franchises are employees of that franchise owner, not of Subway itself.
    Okay, it about 300 to 350 employees in the whole building. Its a distribution centers that supplies the stores.

    Quote Quoting cbg
    View Post
    Then I'd say you should be talking to an employment attorney at this point regarding your best options.
    Thank you for the advice. At this point I might have to.

  10. #10
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,261

    Default Re: Being Set-Up to Fail- Should I Stay (Let Them Fire Me ) or Just Quit

    Ask the attorney about both potential ADA and FMLA violations. I think FMLA is the stronger claim but I can't rule out ADA from what you've posted either.

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