Can I fight my termination?

NEW YORK, NY - JANUARY 18: A job-seeker (top) hands his resume to Candice Perkins, a representatvie of Workforce1, an city-sponsored employment agency, during a "Work Search" event aimed at older unemployed people January 18, 2011 at a high school gymnasium in the Harlem neighborhood of New York City. The event, sponsored by the American Association of Retired Persons (AARP), consisted of workshops for basic job skills like resume building targeted to an over-50 job seeking demographic. Unemployment for older worker has decreased slightly in the past year, though rates are still three times higher than they were a decade ago, when only 2.5 percent of people over 45 were jobless. (Photo by Chris Hondros/Getty Images)
Chris Hondros

(MoneyWatch) Dear Evil HR Lady,

I was just terminated from my recent place of employment. I was under their "6 month probationary period". Their reason for firing me was absenteeism. They were concerned that I had used up my paid time off so soon and that it would develop into a problem.

Now, I have missed work for 3 reasons totaling 5 days in four months.

Day 1- doctors excused contagious flu (Mid April)

Day 2- the final hours of my grandmothers life ( she raised me) ( Early June)

Day 3- the following day to deal with the grief. ( same as #2)

Day 4&5- this past weekend I told my boss I was sick at work on Saturday, finished my shift and tasks 100%. On Sunday morning I passed out and hit my head, opening a small cut. I patched myself up and my fiancee drove me into work. On the way in, I passed out 2 more times in the car and was taken to the emergency room. I was kept out of work that day and the next. ( early August)

I am currently in a state of purgatory, deciding to fight this or move on and use this as a learning experience. I would greatly appreciate some advice.

This sounds awfully fishy, as none sound like things that indicate a lack of reliability. Grandmothers can only die once, the flu happens, and generally when someone passes out they shouldn't come into work. I suspect that they were not thrilled with your performance and are using your "excessive" absenteeism as an excuse to fire you.

This, of course, is silly, because they don't need a reason to fire you. All states, except Montana, have "at will" employment, which means you can be fired for no reason or for any reason at any time (as long as the reason isn't illegal, such as your race or gender or other protected status). Disability falls under that protected status, but nothing you've said here indicates that you have a disability--temporary illnesses don't (generally) count. And there is no protection for bereavement. (And, as a side note, I think most companies have abysmal bereavement policies.) They could have simply said, "Bill, we don't think you're a good fit for the company, so today will be your last day."

Instead, they chose to focus on your attendance and made themselves look like dunces. Well, that's their prerogative as well. There really isn't anything you can do to fight it, since they did nothing illegal. Stupid, probably, but illegal, no. So, here's what you do.

1. Apply for unemployment. Nothing you've mentioned here is egregious or shocking and you should be granted unemployment. (Although, if you were unemployed prior to taking this job, you may not have enough hours worked to qualify, but apply anyway. Worst thing that will happen is they'll say no.) Appeal if you're denied. Always apply and always appeal.

2. Ask your former boss about a reference, via email. "I'm beginning my job search and I'm glad I had the chance to work for you and for the things I learned at [company]. In order to help me be the best candidate, can you let me know what you will say when you're contacted for an employment reference or employment verification?" The reason to do this via email is for the record. He's not required to give you a reference, nor is he required to give you a positive or neutral reference, but it is nice to know what he will say.

3. Ask the HR department about references and employment verification, again via email. Why both the boss and HR? Well, many HR departments have official policies against doing anything other than verifying dates and titles and perhaps salaries, but managers generally will speak up. You want to know what they will say--will they mention that your reason for termination was excessive absenteeism? Because if they will, you'll want to explain in advance to a company that is thinking of hiring you.

4. Contact your former coworkers and say, "I really enjoyed working with you and was sad to leave. I'm looking for a new job right now, are you aware of any companies that are hiring people with my skill sets?" Personalize each email or talk to these people face to face. Also, if you had a coworker that liked you, you can ask that person to ask as a reference. Bosses are always best, but coworkers can sometime give an accurate reference and be helpful.

5. Jump into the job search with both feet and work your buns off finding a new job. It's unfair and unpleasant that your last company fired you, but it's the reality you have to deal with. So, go out there and land something new and fabulous.

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