Virginia Employment Law Blog
One of the common calls I get goes like this: “I was just fired on my day off. They didn’t give me a reason. They won’t meet with me. This can’t be legal.”
It sucks. It feels like you couldn’t have possibly done something wrong if you weren’t even at work. I get it. People often feel that they are entitled to a face to face meeting before being fired or an explanation, and I understand that too. Unfortunately, if you don’t have a union contract, protections as a governmental employee, or some other specific rights that guarantee such a meeting, there’s no legal requirement for that.
And, there isn’t anything automatically illegal about firing someone on their day off, unless something else is going on.
So, why were you off of work?
- Were you on leave approved under the Family and Medical Leave Act?
- Were you out due as part of a reasonable accommodation under the Americans with Disabilities Act?
- Were you on jury duty?
- Where you participating in military service?
- Were you helping someone else with their discrimination claim?
No? Ok. Consider this: if you messed up last week and the decision to fire you comes down on your day off, you can get fired whenever. Even on your day off. Even if you’re off of work for a valid or protected reason on that day, it doesn’t protect you from last week’s mistake.
An example: I’m working at a restaurant and I drop a tray of water glasses on the owner’s mother. The owner is very mad, so mad that he doesn’t deal with me on that same day.*
The next week, I have off for approved medical leave under the FMLA. I come home to a voicemail that says, “You’re fired. You’re a terrible busboy. My mother is very angry.”
That’s all fine. I wasn’t fired for taking the leave and I was fired on my day off. But the firing was for a thing I did the previous week and it was certainly a fireable offense.
*[So, yeah, I definitely did this when I was kid, but I didn’t get fired for it – somehow. Busing tables when I was 15, I completely spilled a whole tray of water on to the restaurant owner’s mom. My boss was… not pleased.]
Similarly, interference with leave under the Family and Medical Leave Act is illegal and disability discrimination is illegal under the Americans with Disabilities Act. And you can’t be fired for using leave for jury duty or using a reasonable accommodation under the Americans with Disabilities Act. But your company doesn’t have to wait until you’re done using those benefits to fire you for something else.
Another example: I go out on paternity leave for twelve weeks, the maximum amount of FMLA leave allowed. While I’m out, my company conducts an audit. Turns out, I’ve been committing fraud! A bit of embezzlement here and there. Kids are getting older and all that. Gotta find a way to pay for college.
At absolute minimum, the company can tell me during my paternity leave that I don’t have a job when my leave is over, and they might be able to fire me immediately, even though my FMLA leave is job protected. The leave is not a shield from acts that have nothing to do with it.
As always, give us a call or send us an email if you think that your rights have been violated.