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Do I have any recourse for being terminated for sleeping on the job during my downtime? My employer told me I could do what I wanted on downtime.

Wednesday January 8, 2014
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Question:

Dear Nancy,

I just got an email from my employer/client who also happens to be the CEO of his own agency. He informed me he is terminating my employment for sleeping on the job.

I had asked him previously if he cared what I did on my downtime and he said whatever I want. So I thought taking a nap would be okay since it was my downtime. My question is this: My employer emailed me his reasoning for terminating my employment and states that if I write him a letter of resignation, he will not report me. What should I do? Resign? Or do I have other legal rights? Is this an ultimatum? If so, is that legal?

His letter stated: I am not the type of person to file reports on people and attempt to make their lives difficult as it is not productive. This incident will go no further than me and you if that's how you want it to be. If you file a claim for unemployment, then I will be required to list a reason and give a full report as to why you were let go. If you would like to send me a letter of resignation, I will accept it as reason for termination, and we will just close out your employment file. Otherwise, the reason will need to be listed as: employment termination by employer.


Rose



Dear Nancy replies:

Dear Rose,

In order to ensure your rights in this situation are protected, you need to consult with a nurse attorney or attorney who can advise you of the laws in your state in relation to unemployment compensation, among other things. Clearly, it is the employer's right to challenge any former employee application for unemployment benefits, but you also may have rights based on your state's law that you need to consider. It would be wise for you to seek this advice as soon as possible.

The employer's comment that he did not care what you did during your "downtime" is interesting indeed. It seems quite odd he would state this, but it is something you will need to discuss with
your attorney.

Obviously, the employer's offer is something to consider, given if you are reported to the state board of nursing and/or other agencies involved in regulating nursing in the facility in which you worked, your license may be disciplined and/or you may be placed on a list of "no-hires," which regularly is reviewed by similar facilities. However, if it is an ultimatum, or some other demand that is illegal and unethical, so you will not file for unemployment compensation, you may be protected from such pressure by a current employer.

Whatever the outcome of this situation, it would be a wise move not to sleep on the job, whether during downtime however it is defined, or otherwise.

What is expected is when on duty, one is awake and able to be of assistance with any issues or situations that arise during the shift, even when at lunch or on break.

Cordially,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed