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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

The possibility of being fired looms large in the list of fears of most workers. While employers generally do have a free hand to hire and fire in the workplace, a number of recent laws and legal rulings restrict those rights. And many soon-to-be-former employees are surprised to find out that they have the power to negotiate some final benefits on the way out the door.

1. For what reasons can I be fired?

You can be fired for a host of traditional and obvious reasons: incompetence, excessive absences, violating certain laws or company rules, or sleeping or taking drugs on the job. And other reasons are gaining in popularity - most notably, letting employees go because of company downsizing due to a downturn in revenue, reexamination of the company's mission or a merger with another company. In most cases, an employer does not need to provide any notice before giving an employee walking papers.

Still, there are limits. Employers do not have the right to discriminate against you illegally or to violate state or federal laws, such as those controlling wages and hours. And there are a number of other more complex reasons that may make it illegal for an employer to fire you-- all boiling down to the fact that an employer must deal with you fairly and honestly.

2. I've just received a warning from my employer, and I suspect I will be fired soon. What should I do?

If you find yourself on the receiving end of a disciplinary notice, there are several steps you should take to avoid losing your job.

First, be sure you understand exactly what work behavior is being challenged. If you are unclear, ask for a meeting with your supervisor or human resources staff to discuss the issue more thoroughly.

If you disagree with allegations that your work performance or behavior is poor, ask for the assessment in writing. You may want to add a written clarification to your own personnel file - but should do so only if you feel your employer's assessment is inaccurate. Take some time to reflect and perhaps discuss your situation with friends before you sit down to write. If you don't take care with your words, they could be twisted against you as evidence of your inability to work as a team player, take constructive criticism or some other convenient company slang.

Look for written company policy on discipline procedures in the employee handbook or a separate document. If the policy says certain measures "must," "will" or "shall" be followed before an employee will be dismissed, then you have more clout in demanding that the steps be followed. That may help buy you more time so that you can change your work habits, you can wait until a workplace controversy dies down or the situation improves in some other way.

Finally, read behind the lines to see whether your disciplining or firing may be discriminatory or in other ways unfair. Look particularly at the timing: Were you put on probation shortly before your rights in the company pension plan vested? Look also at uneven applications of discipline: Are women more often given substandard performance reviews or fired before being elevated to supervisor?

3. What can I do to protect any legal rights I might have before leaving my job?

Even if you decide not to challenge the legality of your firing, you will be in a much better position to enforce all of your workplace rights if you carefully document the circumstances. For example, if you apply for unemployment insurance benefits and your former employer challenges that application, you will typically need to prove that you were dismissed for reasons beyond your control.

There are a number of ways to document what happened. The most important is to keep a paper trail: record and date each work-related event such as performance reviews, commendations or reprimands, salary increases or decreases and even informal comments your supervisor makes to you about your work. Note the date, time and location for each event; which members of management were involved; and whether or not witnesses were present. Whenever possible, back up your log with materials issued by your employer, such as copies of the employee handbook, memos, brochures and employee orientation videos. In addition, ask to see your personnel file and make a copy of all reports and reviews in it.

4. I am being forced to leave my job. But before I go, my employer requires that I sign a document promising not to sue. Will this hold up in court?

An increasing number of employees who have signed waivers of their rights to file a lawsuit over their firing have later succeeded in having the courts throw out the waivers by arguing, for example, that the waivers were signed under duress. But whether signing such a waiver will prevent you from suing your former employer depends on the circumstances of your individual case - there is no way of predicting the power of a waiver in advance.

Going along with the signing will typically give you immediate severance pay. If you have doubts about the validity of your dismissal, however, withhold your signature on any waiver of your right to sue while you think over the company's offer, obtain more information and perhaps hire a lawyer. You take the chance of not getting the money and documentation that the company waves in front of you, but you will lower your risk of signing away essential rights.

5. How much severance pay am I legally entitled to get if I'm fired?

Most employers offer severance in the form of a month or two worth of salary to employees who are laid off or let go for some reason other than misconduct. But no law requires it. And whether it is given at all varies drastically from employer to employer, region to region, industry custom to industry custom.

However, an employer may be legally obligated to pay you some severance pay if you had good reason to believe you had it coming, as evidenced by:

* a written contract stating that severance will be paid * a promise that employees would receive severance pay as documented in an employee handbook * a history of the company paying severance to other employees in your position, or * an oral promise that the employer would pay you severance - although you may run into difficulties proving the promise existed.

6. My biggest concern about losing my job is losing health insurance coverage. Do I have any rights?

Ironically, workers have more rights to health insurance coverage after they lose their jobs than while employed. This is because of a 1986 law, the Consolidated Omnibus Budget Reconciliation Act (COBRA). Under COBRA, employers must offer former employees the option of continuing to be covered by the company's group health insurance plan at the workers' own expense for some time after employment ends. Family coverage is also included.

In general, COBRA gives an employee who quits or is dismissed for reasons other than gross misconduct the right to continue group health coverage for 18 months. In some other circumstances, such as the death of the employee, that employee's dependents can continue coverage for up to 36 months.

7. I just lost my job. What can I do to assure that I'll have some income until I find another job?

Act quickly. Each day that passes without money earned puts you and those who rely on you for financial support in greater risk of running into money troubles. In some states, for example, the gap between the time that a person files for unemployment insurance and the time he or she receives the first unemployment check averages six weeks. And applying for the wrong income replacement program can waste many more precious days, weeks or even months.

Here is a brief breakdown of what is covered by each of the three major income replacement programs.

Also consider possible income from a private disability insurance program if you were paying for it through payroll withholdings, or if your employer paid for such premiums.

In addition, a few states - including California, Hawaii, New Jersey, New York and Rhode Island - offer disability benefits as part of their unemployment insurance programs. Typical program requirements mandate that you submit your medical records and show that you requested a leave of absence from your employer. Some may also require proof that you intend to return to your job when you recover. Call the local unemployment insurance and workers' compensation insurance offices to determine whether your state is one that maintains this kind of coverage.

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