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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33782
Experience:  Retired (mostly)
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Dear Sirs, I was recently let go from my Serving job. This

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Dear Sirs,
I was recently let go from my Serving job. This was as a result of a “less than favorable” shopper’s report. Before I continue, I’d like to say that I was employed there for almost three years without incident. Never even reprimanded for clocking in late. Also, I can say that the General Manager and myself got along famously. I suspect that this had something to do with the fact that we’re of the same age group. I’m 48 and he’s 49.

In addition to the shopper’s report they’re claiming that I did not follow procedure when contacting the company to let them know that I’d be late for my shift. I have call logs to prove otherwise, but due to phone problems they were having at the time, I was unable to get through. I had no other recourse but to call the evening’s Manager on her cellphone in order to let someone of authority know what was going on.
Ironic that this was the first time that I’d ever had to make a call of this kind.

In any case, I find that this shopper’s report has so many inconsistencies in it that it (at least as far as I’m concerned) puts the validity of the entire document in doubt.

Years ago, I was General Manager at a few Restaurants in the Los Angeles area and; please correct me if I’m wrong but it was always my understanding that “write-ups” were designed to protect the restaurant. Meaning that the first write-up would be a warning, the second would warrant a brief suspension and a third would justify termination and thereby protect the restaurant from litigation.

If this is so, I’d like to reiterate that I was employed there for almost three years without incident. However, they felt the need to not only unjustifiably write me up for the first time, but to terminate me as well.

Please let me know what your thoughts are and I’ll proceed accordingly.

Thank you for your time and consideration.

Cordially,

Alex Paez
(XXX) XXX-XXXX XXX@XXXXXX.XXX
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Hello,

Under Labor Code 2922, an employer can terminate an employee "at will," i.e. at any time, for any reason, or for no reason at all. There are a few exceptions: unlawful discrimination based upon race, color, nationality, religion, ancestry, sex, sexual orientation, unequal pay between sexes, pregnancy, age or disability; well established public policies (e.g., jury duty, witness subpoena, report of employer's criminal activities to law enforcement).

Finally, although an employer can terminate an employee at will, if that termination is done in breach of the employer's written disciplinary policies, then the employee may have a civil action for breach of contract, which while it will not permit reinstatement of employment, could provide damages for lost wages, between the date of termination until the date of trial in the lawsuit.

Your termination appears to have no relationship to any discriminatory or public policy area. However, it may have a relationship to a failure to follow disciplinary policy. If so, then you could sue to recover your lost wages.

The downside to this lawsuit is that unless the employee handbook, or some other written employer policy permits "prevailing party attorney's fees," you would have to bear the sole cost of litigation, as would your employer. Most of the time, except for very highly compensated executives, suing for a breach of contract ends up costing more than the employee's lost salary/wages, which makes the case a lost cause from the start.

What this probably leaves you with is, assuming that you can show the court that the employer failed to follow its own policies, is a small claims action for up to $7,500 maximum. Considering that filing will cost you only $75, it's possibly worth the risk, since of you lose, you're only out that amount of dough. But, you still must prove your case, as I've explained above.

The only other recourse is to just file for unemployment benefits and move on down the road.

I realize it may seem as though I'm painting a bleak picture here, but the reality of the employment relationship is that it heavily favors the employer, and has since practically the beginning of recorded history. California has probably the most liberal employee protections in the USA, but it still adheres to the "at will" employment doctrine, at base, and as long as this remains true, employees are always at a distinct disadvantage in their quest for justice.

Hope this helps.

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socrateaser, Lawyer
Satisfied Customers: 33782
Experience: Retired (mostly)
socrateaser and 3 other California Employment Law Specialists are ready to help you

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