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How to Handle Wrongful Termination

Posted by Elaine Varelas  March 14, 2012 10:00 AM

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Q. For the last 4 months I have worked as a sales rep for a large furniture chain. In these 4 months I was ranked #71 out of 500 nationwide, and in January and February of this year I sold $157,000 worth of furniture at our store. When I came into work last Thursday I was handed a termination letter from a corporate guy stating I was not honest in the interview. I had not disclosed an arrest that had happened 6 years ago and was dismissed.

I still have my manager as a good reference and am proud of the sales accomplishments I achieved while working there. I also know to be upfront and honest about my background now. Should I list this job on my resume, even though I was terminated?

A. The idiom “The devil is in the details” is vital in your current situation. Based on your description of the interview questions, and the actions taken by the representative from corporate, I asked David Wilson, an employment attorney with Hirsch Roberts Weinstein based in Boston to review the situation.

Attorney Wilson suggests you clarify two important pieces of information. First, did the representative and letter from corporate say you were being terminated because you did not disclose an arrest from 6 years ago? Second, are we clearly talking about arrests and not convictions?

If the answers to these questions are yes, you have a few actions you may want to take. Attorney Wilson explains, you may want to let your former employer know that you believe your firing was illegal. “An employer is not allowed to ask about "arrests" in the employment application and interview process. The Massachusetts Commission Against Discrimination (MCAD) has determined that asking about arrests can be evidence of discrimination since statistically, age, race, national origin and gender have more to do with the likelihood that you will be arrested and an arrest is not a conviction.”

“Even if the employer asked the question, illegally, the employee was not required to answer the illegal question truthfully. M.G.L. c. 151B section 4(9) provides that not disclosing an arrest is not perjury. Specifically, the statute states: "No person shall be held under any provision of any law to be guilty of perjury or of otherwise giving a false statement by reason of his failure to recite or acknowledge such information as he has a right to withhold by this subsection." So not disclosing the arrest in an interview is acceptable, and not a reason for termination.

How you handled this situation may help you regain your job if you want to try. You have the support of your manager, and you may choose to use this support to get internal advice about having a conversation which doesn’t begin in an adversarial manner. You can express your sincere sadness at the loss of a job where you were doing so well, and one where you felt committed to the company. You can also let him know you would love to have your job back, and that you believe your termination was made in error based on information you gained about acceptable practices in the interview and the reasons for termination “which human resources may not even be aware of”. You might ask for your manager’s support, and for recommendations about who to go to so that you can discuss this further.

Wherever you are directed, explain the situation and what you learned. Also be clear that your goal is to get your job back.

If the company is not willing to correct its error, there are many employment lawyers who would be willing to take your case.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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Patricia Hunt Sinacole is president of First Beacon Group LLC, a human resources consulting firm in Hopkinton. She works with clients across many industries including technology, biotech and medical devices, financial services, and healthcare, and has over 20 years of human resources experience.

Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston and serves on the board of Career Partners International.

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