Firing Appears Discriminatory
Q: I worked for a couple of years at a religious organization. I jokingly made a comment about how the organization treated people who were not of that religion (I am of a different religion) and was fired for making a religious slur. I never said anything different from what others had said.
I should have fought it legally, but everyone told me I should just be glad to be out of a bad situation. I became a stay-at-home mom for several years, but would like to go back to work now. What can I do about references? Can the organization tell potential employers that I was fired and explain why?
A: “Yes, the organization can tell a potential employer that you were fired and explain the circumstances of the termination,” says Harry Sangerman, labor and employment law partner at the Chicago office of McDermott, Will & Emery.
But Sangerman says that most employers are well advised to refrain from that type of reference even if they can legally give it. This is because former employees who believed that their inability to get another job was based on a negative reference have brought suits for defamation (libel and slander). Because this type of litigation is costly, many employers opt to provide only neutral references, such as confirming employment dates and other objective information.
Your best approach is to call the head of human resources to discuss how the organization handles references. With the passage of several years, you may be able to convince the organization that a neutral recommendation is warranted.
Sangerman says you may have had some basis at the time you were fired to claim that you were being discriminated against because you were not of the organization’s religion. Your evidence might have been that derogatory remarks made by employees of that religion were not acted on. But a charge under Title VII of the Civil Rights Act of 1964 must be brought within 300 days after the alleged discrimination. Many similar state and local laws have even shorter time limits.
Free-lance pay instead of a raise is a bad deal
Q: I work as a full-time employee. My boss has asked me to do some work that is outside my job description and has offered to pay me as a free-lance consultant in lieu of giving me a raise. She told me I could do the work during my regular work hours. My gut feeling is that it is a bad idea. How should I handle this?
A: Not only is it not a good idea, it may well be illegal. According to Shelly Reitman, lawyer and CPA partner at the Chicago-based accounting firm Shepard, Schwartz & Harris LLP, “The Internal Revenue Service’s position is that where the worker has a continuing relationship and the work is done on the employer’s premises under its control, the worker is considered to be an `employee.’ This means that the employer is responsible for paying half of the employee’s Social Security and Medicare taxes. If an independent contractor relationship exists, the worker is liable for all of the Social Security and Medicare taxes.
“Since this employee will work on her employer’s premises during normal work hours, she is clearly an employee,” says Reitman. “If her boss pays her for the extra work as an independent contractor, the company will not withhold payroll taxes on that payment. At the end of the year, she will be responsible for payroll taxes equal to 12.4 percent for Social Security plus 2.9 percent for Medicare, or a total of 15.3 percent, in addition to normal income tax. This is a substantial difference, since the normal income tax rate for a single taxpayer is 15 percent on the first $26,250 and 28 percent on the next $37,300 of taxable income.”