Do Per-Diem employees have equal rights to Full-Time employees?

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Do Per-Diem employees have equal rights to Full-Time employees?

A Per-Diem employee, who was with the company for over 15 years, was fired because she took a few months of vacation, which was approved by the scheduling team. They fired her without prior warning or reprimanding. Then they sent her letters congratulating her on her retirement. Now the company has told her Unemployment office that she was never fired but that she quit and now she might even lose unemployment benefits. Does she have any rights?

Asked on June 13, 2009 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

New York is an employment at will state, which means that employees may be fired at any time, for any non-illegal reason or no reason at all, if there's no contract (either individual or collective) which limits termination. (In this context, the main illegal reason would be improper discrimination, such as against race, gender, age, etc.) So the company could fire a per-diem at any point, including right when she comes back from vacation, and even w/out any prior warnings or reprimands.

What they *cannot* due is lie--they can't send out letter or other writings, tell prospective employers, or tell the Unemployment office that she resigned when she did not. The employee should:

(1) tell the Unemployment office that she did not resign and the company lied--she needs to dispute the company version of events and ask them to investigate

(2) she should contact the main office of the Dept. of Labor at 518-457-9000 or 1-888-4-NYSDOL, or by email at nysdol@labor.state.ny.us, and similarly explain the situation and ask to file a complaint against the company

(3) she *may* want to retain a labor/employment attorney and bring her own claim, but the first question is, is that worth it? Remember "employment at will"--since she could have been fired anyway, there might not be enough monetary damages to make a claim economically worthwhile. If she can find an employment lawyer who will give her a free consultation, she should take with him/her and get a better sense of whether there is a worthwhile case here.

Note that if there's no evidence supporting the per diem's position, then proving that she was fired and did not resign may be difficult. If she discussed the situation with other employees, had any memos or emails she sent to the employer saying that she did not and was not resigning, etc., she'll want to get them lined up and in order.

Conversely, she should honestly ask herself whether she did possibly say or do anything that would have convinced the company that she was resigning, in which case they have been mistaken, but at the same time, may not actually have done anything wrong.

Again, though, since they could fire her anytime, the most she may be able to get is to make sure she collects unemployment--it would be very hard to make a claim for wages or reimployment when she could have been fired at any time.

Finally, if she thinks she was discriminated against for her age, gender, race, etc., then it's a whole different story, and if she can prove that, she may have a very good claim.


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