Laid off and replaced by consultants

[Rex1976]

My jurisdiction is: CA

I was an employee of a large architectural firm in San Francisco for 32 years. I was laid off in January 2009 while performing work on several large projects.

1) The firm's Los Angeles office has since retained me indirectly through a third party consultant to complete the work on a museum project under construction in Los Angeles.
2) The firm's San Francisco office has since retained a consultant to complete my work on an airport project in San Francisco.
3) The firm's Newport Beach office has since retained a consultant to complete my work on an airport project in Orange County.

The firm had intended that other members of the project teams could perform my work, but consultants have been required due to the complexity of the work.

The consultant work on all three projects is costing the firm more than it would have cost for me to complete the work. My work load would have been 32 hours per week through May 31, 2009, and then 8 to 32 hours per week for the next two years.

I am on long term disability and can work flexible work hours. I also have my own healthcare coverage, which reduced the firm's cost to employ me.

Due to the technically specialized nature of my work and the need to hire consultants to complete my work, does this constitute wrongful termination or any other violation of state or federal termination laws?

 

[cbg]

Due to the technically specialized nature of my work and the need to hire consultants to complete my work, does this constitute wrongful termination or any other violation of state or federal termination laws?

No. If there is a wrongful termination, which we have not yet established, it is not for either of these reasons. A wrongful termination means that there is a specific law that prohibits the employer from terming you for the reason he did. It has nothing to do with the nature of your work or how it gets completed without you.

You say that you are on long term disability, but that you can work flexible hours. Being on LTD and being able to work at all are incompatible statements. Please explain.

 

[Green_Hornet]

Contact an employment law attorney. There are three wrongful discharge causes of action in California they are: 1) a cause sounding in tort, based on an allegation that the termination was made in violation of a fundamental public policy of the state (this is often called a Tameny tort), 2) a cause for breach of the contract of employment, and 3) a cause alleging breach of the covenant of good faith and fair dealing that inheres in every contract. The Tameny tort takes its name from Tameny v. Atlantic Richfield Company, a 1980 California Supreme Court decision authored by Justice Mathew Tobriner. This is over simplified so you really need to talk to an attorney to see if there is wrongful discharge case. Given your age and disability there could be other federal or state issues as well.

 

[cbg]

While I would never tell anyone NOT to contact an attorney, if you can answer a few questions we may be able to clear this up.

1.) Were you collecting disability benefits?
2.) If so, have you been actively at work?
3.) If you have not been actively at work, how long have you been off work?
4.) Were you operating under a contract or CBA that granted you a particular length of leave?

 

[Rex1976]

Answers to Response Questions

I have been on Partial LTD since 1993.
I have been collecting private LTD benefits, which are reduced based on my monthly earnings.
I was working 32 hours per week when laid off.
Since my January layoff, my part-time contract work has averaged about 20 hours per month.
I was working as a regular part-time employee at the time of layoff.
The Employee handbook indicates that: Employment is "at will"; Regular employment is longer than 180 consecutive days; Part-time is less than forty hours per week.
Leaves of absence are adminstered through an outside company, The Larkin Company

 

[Rex1976]

Additional Question Regarding Layoff Laws

I would like clarification on a law that was described to me, either state or federal, which stipulates:

During the first six months of an employee's layoff, the employer is not permitted to rehire the employee without benefits as a temporary or a contract worker.

My understanding is that the intent of the law is to prevent employers from laying off employees for the purpose of rehiring them without having to pay benefits.

Does such a legal stipulation exist?

If so, is my being terminated and replaced with contract consultants, who do not receive benefits, not a similar action?

Thanks everyone.

 

[Green_Hornet]

I would like clarification on a law that was described to me, either state or federal, which stipulates:

During the first six months of an employee's layoff, the employer is not permitted to rehire the employee without benefits as a temporary or a contract worker.

My understanding is that the intent of the law is to prevent employers from laying off employees for the purpose of rehiring them without having to pay benefits.

Does such a legal stipulation exist?

If so, is my being terminated and replaced with contract consultants, who do not receive benefits, not a similar action?

Thanks everyone.

I never heard of it. It would not make much sense. If an employer lays off but 90 days later has two weeks worth of work he could not recall an employee thats laid off.

However if an employer was doing it willfully in order to prevent an employee from collecting benefits it could give rise to suite depending on how the facts roll out. For example an employer promises benefits after say 365 days employment, then lays the employees off on day 364 then rehires them the next week. That could cause problems for the employer.

 

[arkady39]

Laid off and replaced by consultant

Dear Rex,

Your termination after a long-term employment is inevitably "suspicious," as it usually takes a serious reason, be it a business restructuring or an egregious misconduct, for a company to terminate such a long-term employee as yourself.

However, suspicion alone is not enough to pursue a legal action and, so is the fact that the company spends more now than it was when you were an employee, although it is surprising. You mentioned that you were placed on disability. Do you have any reasons to believe that your change of status resulted from your exercising your disability rights? If so, what makes you believe, if anything, that your employer retaliated against you because of your disability? These are critical question in determining whether your employer violated the law.

Thanks, and feel free to follow up.

Arkady Itkin
San Francisco Employment Lawyer

 

[cbg]

Although commonly believed to be true, no such law as you describe exists.

However, under the circumstances you've described, I think your best bet is to consult with an attorney. While I can't say for certain that you've been wrongfully terminated, I most certainly can't say that you haven't. The fact pattern is going to be too specific for a message board to determine. An attorney working on your behalf will have access to information we can't get to.

Good luck.