If you have been an employee long enough, you’ve probably run into the following situation or one very close to it. You are relaxing on your well-needed day off. You’ve been working hard all week, and now it’s time to reap the rewards. You may want to relax, catch up on some errands, or spend quality time with your family. And just as you begin to unwind and enjoy the day, your phone rings. You can tell from the caller ID that it’s your employer. Depending on your company culture, this call could be important or trivial. Some bosses only bother you when it is an emergency that only you can fix. Others simply don’t respect your private time. In either case, you may decide not to answer your phone and enjoy your day.
When you do this, you may hear the little voice in your head saying, “Can I be fired for not answering my phone on my day off?” You probably hope that the answer is no. After all, we all deserve some time to ourselves, right? But unfortunately, due to the at-will nature of most work in Maryland (and most of the US), the answer is yes. Your employer can fire you for not answering your phone on your day off—or for almost any other reason that does not violate contract or employment law.
Believe it or not, almost every state in the United States has adopted what is known as at-will employment. This means that an employer can fire you for any reason or for no reason at all. The only holdout is Montana, where after a probationary period, your employer cannot fire you without just cause.
We understand that this seems unfair. Imagine working a job for years, and one day, your employer terminates you because they were in a bad mood, and you rubbed them the wrong way unintentionally. Unfortunately, that is the law throughout the United States right now. However, there are some exceptions that may prevent your boss from terminating you for not answering your phone.
Exceptions to At-Will Employment
There are a few exceptions to at-will employment that you should be aware of. These laws can prevent an employer from firing you for certain reasons and give you a legal cause of action when they do.
Your Termination Was Against the Law
There are federal and state laws in place that protect employees from discrimination in the workplace. Title VII ofthe Civil Rights Act of 1964 (Title VII)established protected classes of people who cannot be discriminated against or terminated based on race, creed, color, nation of origin, or sexual identity.
In addition, most states have laws that mirror federal laws and sometimes expand their protections. State Government Article section 20-602 (section 20-602) of the Annotated Code of Maryland protects employees against discrimination based on many of the same protected classes. But how does this fit into the scenario where your boss fires you for not answering your phone?
Well, maybe that was not the real reason your boss fired you. Perhaps your employer has a track record stretching back two years where they clearly wanted to “get rid of you” but failed. And suppose that the real reason they want you gone is that you are a woman, or gay, or any one of the protected classes listed in the Civil Rights Act. If you can show a pattern of discrimination and any evidence that the dismissal was illegal discrimination, you may be able to fight it in court.
Your Termination Was Against Public Policy
Public policy is written or unwritten rules that exist for the public good. So if your termination violates public policy intended to maintain the public good, you may have an actionable claim against your employer.
For example, suppose that over a period of time, you witness your employer taking shortcuts. These shortcuts create an unsafe work environment for you and your co-workers. After a year of looking the other way, you can’t take it anymore, so you report this behavior to the Occupational Safety and Health Administration (OSHA). Your employer cannot terminate you for reporting this behavior. Public policy is there to protect the public good, which employers serve by following safety protocols. So the law encourages reporting violations in an effort to keep workers safe.
You Have an Employment Contract
Some workers sign employment contracts when hired. Such employment contracts may have provisions stating the circumstances under which your termination is proper. If your employer includes a termination clause in your employment contract, then that provision limits their ability to fire you. Furthermore, statements in employee manuals and even oral statements may create an implied contract that is enforceable. For instance, if your employer told you verbally or in an employee manual that they would not fire you unless your work performance was bad, that is an implied contract. If they subsequently fire you, you might have a cause of action based on breach of implied contract.
Vacation and Sick Leave
What about vacation time and sick leave? Can you be fired after not answering a call on a vacation day? Unfortunately, federal and state laws generally do not afford employees a right to break or vacation time—not even for federal or state holidays. Your employer can snatch back your free time as quickly as it gives it, but there are some exceptions to this discretion.
Did you receive vacation time from work, and now your boss seems to take every moment to text during your break? Your employer is within its rights if you get fired for not answering on a day off, but only if you were not promised a different arrangement in an employment agreement.
If you were disciplined after you failed to answer a work call on a break, bring all employment contracts, employer policies, correspondence, and notes regarding break time to one of our experienced employment law attorneys. We can help you determine if you have a breach of contract claim against your workplace.
Your employer must leave you alone if you have taken authorized time off for a religious event. If an employer interrupts you during a faith-based break and then fires you for not responding, that employer’s acts could be considered a violation of Title VII or section 20-602.
But before you jump to filing a job discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or the Maryland Commission on Civil Rights (MCCR), make sure that your employer has at least 15 employees. In many cases, only employers with 15 or more employees are subject to MCCR or EEOC claims.
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) gives employees job protection if they need time off to handle grave personal or family issues. And the FMLA is how many employees fulfill their needs for maternity and paternity leave.
You can have up to 12 weeks of unpaid, protected leave in a year for the following reasons:
- The birth of a child;
- Bonding with a newborn, newly adopted child, or new foster child;
- Tending to a serious health condition (including pregnancy);
- Addressing exigencies related to the military service of a close family member; and
- Caring for an immediate family member with a serious health condition.
To qualify for this type of leave, you have to have worked for your employer for at least 12 months, and you have to have worked for at least 1,250 hours in the last 12 months. Also, only employers with 50 or more employees within 75 miles have to comply with FMLA rules.
The Americans with Disabilities Act
What other law protects you from being fired for not answering the phone on a day off? The Americans with Disabilities Act (ADA). If a health-related issue substantially limits one or more of your major life activities, your employer needs to reasonably accommodate you. Reasonable accommodations can include uninterrupted time off.
Remedies for Violations
If you have a valid legal claim after being terminated for not answering the phone during a day off, there are several remedies you can recover, including:
- Back pay,
- Front pay,
- Compensation for emotional distress,
- Compensation for financial losses,
- Job or benefit reinstatement,
- Punitive damages,
- Policy changes for your workplace, and
- Legal costs.
And to help ensure that your employer has no claims against you, you need to return any work equipment in your possession as soon as possible after termination.
You Can Count on Us
So to summarize, yes, your boss can fire you for not answering your phone on your day off. Some employers are respectful of employees’ time off. Others may abuse at-will employment laws and harass you consistently on your days off. In fact, they may consider it part of your job. On the bright side, the law requires your employer to pay you for the time you spend on the phone. So if you are an hourly employee, make sure that phone call makes its way to your timesheet.
However, if you feel like your employer wrongfully terminated you based on the exceptions listed above, then you need an experienced employment legal practitioner from Smithey Law Group. We fight for the rights of working people all over Maryland, and we’d be happy to put our knowledge and passion to work for you. Please call us at 410-919-2990 or contact us online. We look forward to serving you!