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Wrongfully Terminated New Mexico? New Mexico (Employment & Labor Law)

Tue, 22 Apr 2008 10:58:00 GMT

My spouse was recently terminated from her job as a result of being attacked while working by a fellow employee. 5 days prior to this attack she had reported (in accordance with company Employee Handbook) an incident of Workplace Violence(abusive language) by the very same employee who had attacked her. Supervisors and management did nothing about this report, since both employees were still working on the same shift in the exact same area. The company only took statements from my spouse and her attacker and determined that it was a "fight" not an attack and terminated both employees. We know of several individuals that observed the incident and all state that my spouse was attacked. The company intended to rely on "video surveillance" of the area to resolve what had happened, but there is no suveillance of the area. We have since appealed this termination and are awaiting a response
If my spouse is not re-instated as a result of the appeal, do we have a case for Wrongful Termination since she had reported a prior incident with this very same employee and management basically ignored the report??

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  • Tue, 22 Apr 2008 11:38:00 GMT(1)
  • EDIT

    Sorry, missed that you said both employees were termed. Some companies find it easier to get rid of both employees regardless of who instigated what. What exactly happened? "attacked" is a pretty vague word.
  • Tue, 22 Apr 2008 11:44:00 GMT(2)
  • Spouse was a beverage server in a casino. Was at a server station when other employee assaulted her(pulled hair, punched in face and slamed head into wall). Numerous casino customers and employees witnessed assault. In speaking with HR it appears to me that they only took statements from my spouse and other employee and determined it to be a she said/she said case, so they terminated both employees. I just think that the prior report of Workplace Violenece is pretty important here. The employees could have been placed on different shifts or indifferent areas and this ws not done.
  • Wed, 23 Apr 2008 06:11:00 GMT(3)
  • Agree with others--not illegal. As Betty pointed out, a police report for the assault is about all you can do.
  • Tue, 22 Apr 2008 13:11:00 GMT(4)
  • There were many action that could have been take but in long run they chose this action. Now unfair (if you believe) is not illegal and in order to have a "wrongful termination" you must have a violation of law
  • Tue, 22 Apr 2008 13:11:00 GMT(5)
  • Could have been. Should have been.

    Not legally required to.

    Employers are not courts of law. They do not have to perform a full investigation of all of the circumstances of an incident.

    They both fought in front of customers. Terming them both is what most employers would do.
  • Thu, 24 Apr 2008 15:09:00 GMT(6)
  • What does the handbook state that management will do when an employee reports abusive language?

    I agree that your wife should file an assault charge against her co-worker with the police and provide the police with the names of the witnesses. If the co-worker is found guilty of assault, your wife should consult an attorney and see if the employer can be held liable for failure to take action to address the abusive language report and thereby prevent workplace violence.
  • Thu, 24 Apr 2008 07:41:00 GMT(7)
  • I suppose it's possible your wife was just standing there, minding her own business, and this other employee came at her from out of the blue and assaulted her without any provocation. Seems rather unlikely though. Presumably, there is some history of the two of them not getting along and "getting into it" at work. If your wife's employer felt they were both responsible for the incident and whatever led up to it, they were free to terminate them both.

    Your wife is free to file a criminal complaint with the police for the assault. Nobody can get her job back for her though - this is entirely her employer's decision.
  • Tue, 22 Apr 2008 19:52:00 GMT(8)
  • This was not an illegal termination under the law. Your spouse should have reported the assault to the police.
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