Resigned with Notice, Fired Before Notice Up

[rdm63]

Needing info on behalf of my husband. Worked 6+ yrs. with retailer as counterperson. Daytime hrs, 5 weekdays/8 hrs./day. No nights or weekends. Husband called in 2 hrs before shift on a Monday with injury to leg:unable to work shift. Mgr. said OK. Husband worked next day, was told by other employees and a customer that mgr. had stated that if husband couldn't work the good daytime hrs, he would move him to all nights and weekends, 4days/10 hrs./day. Mgr. changed schedule, and presented same to husband. Husband has a knee problem that is aggravated by long hrs. on hard floors, standing. Husband stated he was unable to work longer hrs. due to his physical condition, and that weekend hrs. interfered with home life. Mgr. said tough. Husband gave 2 weeks notice because physically unable to work 10 hr. shifts. Three days later, while husband clearing drawer for lunch, mgr. told him he didn't need him anymore, and he could just go home permanently. Husband did so, considering himself fired. Husband filed for UI. UI approved initially because work conditions had changed to extent as to be detrimental to physical health. Employer (head office) appealling UI. Employer documents accompanying appeal do not mention the firing, with or without cause. Also have discrepancies as to dates of occurences and conversations held. Husband was paid for hrs. worked on next regular payday, and for accrued vacation time the payperiod after that. Question: was my husband fired, or did he quit? If it was a voluntary quit, what would he need to prove that he was concerned about the schedule change's effect on his physical health? He had never been asked to work 10 hour shifts, and that is not a usual shift duration with this company, but one that he feels was retaliatory for his missing work due to an injury. Also, is there any way to protect the identities of former co-workers that may testify on his behalf, if they are still employed by the same store and need to avoid any retaliation for their testimony(which would be on my husband's behalf, and against the store manager).
This is an at-will state, and my husband was an hourly employee.

 

[Patricia_Young]

He wasn't fired. The employer merely accepted his resignation earlier that the last day he desired.

The employer doesn't have to take the employee's word for any medical restrictions. Did he provide a doctor's note? The note itself need be given no weight unless FMLA applies, just asking.

Wish you had posted before he resigned; there might have been some options if FMLA was a possibility. Even if it was, now is probably too late to do anything about it. Sorry, I'm sure this isn't the answer you wanted to hear.

 

[rdm63]

Doctor's note available, never asked for. Don't know if FMLA would apply as he was able to work the 8 hr shift standing, with difficulty, but not the 10 hr shift as too much strain would be put on his legs. He did offer to try to work the longer hours, but was told either you do it or you don't have a job here anymore. The short time frame (Monday missed, notice given Tuesday after discussion with mgr, let go Friday) ddn't give me much time for anything. Plus you know how difficult some people can be when they are feeling "put upon"! Thank you for your response.

 

[Patricia_Young]

Did this employer have at least 50 employees at his job location or within a 75-mile radius?

 

[rdm63]

Yes, 50+ employees within 75 miles of his store.

 

[cbg]

It's possible - no guarantees, but possible - that FMLA might have applied. It can't hurt to contact the US DOL (they are the regulatory agency for FMLA) and see what they have to say.

 

[rdm63]

Thanks, I'll look into that. Have also retained an attny. to help with the Unemployment Appeal Hearing...just don't feel confident in husband doing it himself. Getting duck-uments in a row preparing for that hearing, which is really what his benefits rely on. Hopefully a good outcome. Attny. seems positive and confident.