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Waiting period to rehire?

I was recently terminated from my job. I was told the termination was not based on performance but that the position was eliminated due to a reorganization in the department and my skills did not fit anywhere in the new organization. I noticed three days later that my position was posted on the internet. The position was slightly renamed but the job duties listed tasks I was doing. Also, I found out that they are hiring 2 people for this position and they had already hired someone who started the day after I was terminated.

Questions:
1.)Can an employer hire for the same position after they told you it was eliminated due to a reorganization? Isn't there a 6-8 month waiting period to rehire someone for that position? Can they get around this because it is slightly renamed and reporting to a different person in the department?
2.) I was never given any indication (written or oral warnings) that my skills were not good enough for the position. Do I have any recourse?
3.) Can I ask to see my employee file?

1 answer  |  asked Feb 25, 2002 7:44 PM [EST] in Employment Law  |  applies to Ohio

Answers (1)

Richard Renner
Fired without good cause under "employment at will"

In Ohio, as in all of the United States (except Montana), bosses can fire workers for any reason, or for no reason, as long as it is not for an illegal reason. This "freedom" is called "employment-at-will." It is an ancient English doctrine that never seemed to apply to slaves. Anyway, you are free to quit anytime you like, and the boss can fire you for any reason, or no reason at all, as long as it is not an illegal reason. If the employer acted in violation of a clearly established public policy, Ohio courts will now recognize a tort of wrongful termination.

A worker's most common protection against unfair dismissals is a union contract. Without a contract (union or otherwise), you would have to point to some law that protects your job, or protects your conduct that made the boss mad at you. Next time you are employed, think about whether you could get at least half of your co-workers to support a union. Union contracts typically prohibit discharges or discipline without "just cause." Further, layoffs and recalls are typically by seniority. You could file a grievance.

If you have a specific (generally written) contract of employment, you may be able to enforce that. If your contract does not specify either a term of years, or tenure, then the company was free to terminate it, without notice, and inform you that your job is eliminated.

If you had approached the boss as part of a group, or on behalf of a group of employees, you may be protected from retaliation for having engaged in "concerted activity." This protection comes from the National Labor Relations Act (NLRA), the same law the protects workers who engage in union organization. The time limit to file a charge is 180 days from the date of the retaliation. You can get a charge form at http://www.nlrb.gov/forms/nlrbform501.pdf
Find the address for your NLRB office at http://www.nlrb.gov/map/map01.html

Without a contract (union or otherwise), or evidence of unlawful discrimination or retaliation, the boss is free to fire you and hire someone else the next day. Similarly, private employers have no duty to show employees' their personnel files. Public employers do. If there is a union, the union has a right to get a copy.

I must ask, why do you think the former employer is doing this to you? Perhaps it is unlawful discrimination or retaliation. Is it possible that the boss was already mad at you for some other reason, and then used a pretext to justify firing you? Without more, I could not recommend legal action. If a law applies, there is certainly some time limit for you to make a legal complaint, depending on the basis of the employer's ire. For race, sex or age discrimination, the time limit is typically 300 days from the date of the wrongful act (6 months for complaints to the Ohio Civil Rights Commission). If it is retaliation for trying to enforce environmental laws, the time limit is 30 days.

Please consult an attorney promptly to determine the time limits. If you are a public employee, your time limit may be as little as ten (10) days. Workers comp retaliation claims must be made within 90 days. Other laws have time limits ranging from 10 days to 6 years. The time limit for the defamation claim is one year.

A good book lists many laws that protect employees. The National Employee Rights Institute (NERI) publishes a book called Job Rights and Survival Strategies. I recommend it. It costs $22.95. Look at:
http://www.workplacefairness.org/jobsurvival.shtml
Call 800-HOW-NERI, 1-800-469-6374.

If you cannot point to a law, a public policy, or a contract, you are free to quit and look for another job. You may be entitled to unemployment compensation benefits. You can file for unemployment at any Job Services office in the US or Canada.

posted by Richard Renner  |  Feb 25, 2002 11:51 PM [EST]