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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33781
Experience:  Retired (mostly)
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Hello,I work in an office where my boss has been consistently

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Hello, I work in an office where my boss has been consistently doing inappropriate things. Scheduling me in a way that is unfair versus a new hire, calling me and harrassing me at home about one word I used in an email, writing false things on my yearly evaluation that can be proven to be false by one of her assistance, giving me a full time position and the claiming in the middle of my yearly interview that it was "cancelled" by HR for reasons she does not know while at the same time saying it has nothing to do with my evaluation and finally causing me so much stress during this recent evaluation that I had to take a sleeping pill which ulitimately caused me to oversleep for my next shift do to an issue with my alarm. Unfortunately she has told me that this "no show" is grounds for dismissal based on policy and am sure she is right about this but I worry that the recent events (this week) mentioned above will make her dismiss me unfairly because of an on going unfounded issue she has had with me. I need to know what I can and should do and will i still be able to follow up with HR if she lets me go tomorrow.

Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
Your employer can terminate you "at will" (at any time, for any reason, or for no reason at all), unless you can show that the termination is discriminatory (race, color, nationality, ancestry, religion, sex, sexual orientation, pregnancy, age or disability) -- or that the termination violates the employer's disciplinary policies.

Apparently, your employer is following its disciplinary policy by notifying you of your failure to appear for work at the scheduled time. This leaves you with the discrimination option. If you were to obtain a diagnosis from your physician that you are clinically depressed, then you could use that to request reasonable accommodations for your disability from your employer, and the employer may have to soften its stance on your failure to show up on time.

In my opinion, that is your only option, and it's still a fairly weak case. If you want to give it a shot, then go visit your physician and tell him/her that you're having trouble sleeping and getting to work on time.

And if your employer actually fires you, after you request reasonable accommodations, then you can file a complaint with the Department of Fair Employment and Housing at this link.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 33781
Experience: Retired (mostly)
socrateaser and 3 other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

DearCustomer

 

I am sorry it has taken me so long to "accept" your answer and get back to you but it has been a horrible week. I truly appreciate your response and hope that I might be able to ask you a couple of follow up questions once the dust settles on my end. I would truly appreciate it! Thanks again for being willing to use what you know to help others.


Sincerely,

Customer

Customer: replied 2 years ago.

DearCustomer

 

I guess I do have another question (somewhat.) HR is meeting with me in the morning and they want to know more information about the reasons for my "no show." I already talked to them and told in detail the issues leading up to it. They seem to be very interested/concerned about a lot of things I have shared about my boss and her treatment of me. I plan on going in with a letter explaining it all in detail because I am afraid I will forget key things. They told me they are ultimately going to table the potential dismissal for my "no show" because they want to look into these other issues. I am wondering what else I should do to protect my position while at the same time bringing to light other issues with my boss. I am afraid that after it is all said in done they will still let me go due to policy. I am assuming that after I reveal the truth and show that my no show was a direct result of actions from my boss that they won't fire me. Also if they don't, do you have any suggestions for fighting the reneging on my full time position. HR says they did not cancel therefore my boss seems caught in a lie. Not sure if this makes sense and if there is any question in here :) I am a mess about the whole thing. Thank you for any additional help.

Expert:  socrateaser replied 2 years ago.
In my experience, HR will "investigate" as a means of mitigating any possible risk, and then terminate the employee -- unless there is credible evidence of class-based discrimination, or any colorable claim of sexual harassment. In the latter cases, HR will terminte the supervisor, unless that person is an "executive" (corporate officer, director, major shareholder, owner etc.).

The more info you provide to HR, if not related to unlawful discrimination, the faster you will lose your job -- because as soon as HR is reasonably certain it has no risk in terminating your employment -- that's when it will terminate your employment.

I can't tell you what to do, and this is your job that at's stake. However, as I explained previously, you must be able to make some claim that will fall within the federal discrimination laws, or you will not sufficiently impress HR that there is a risk of legal action sufficient to avoid your being terminated.

Sorry if this reaches you too late to be of use.

Best wishes.
Customer: replied 2 years ago.
Thank you!!!!!! I am five minutes away from meeting them. I hope that all of information I have keeps them from wanting to take that risk. Perfect timing. Much appreciated!
Expert:  socrateaser replied 2 years ago.
Good luck to you.
Customer: replied 2 years ago.

DearCustomer

 

Thanks to your help I went to my investigatory meeting completely prepared with all the facts and proof to show that my "no show" was a direct result of the things that my boss did to me during that week. They changed my unpaid administrative leave to a paid leave (thank goodness) and told me they would investigate my issues and get back to me. HR called me today and told me that they wanted me to meet tomorrow with my boss and her boss to talk about the issues that I brought up. By the way, the initial meeting was just HR and my boss' boss. She also told me, when I asked, that I did not lose my job. So this is great news!!!! But now I am concerned about the future and do not know how I should handle meeting with my boss and her boss tomorrow. I am not sure if I told you but my boss did some horrible things to me and in a way I was truly hoping that they would consider firing her. Before my "no show" I was going to go to HR about these issues anyway. I guess I want to know my rights, in terms of what I believe has been blatant discrimination. They talked to me on Thursday and already have it resolved today. I just can't believe that they truly investigated anything. I feel like they are going to just give her a slap on the wrist and assume that I am just happy to have a job. Our unit has been complaining about her for years. I am worried that my concerns are just going to be ignored or fixed with them saying she has been warned not to do this again because they feel like I am more worried about keeping my job. I was going to go to HR about these issues before my "no show." Now that I know I have my job I really want something done about how she is treating me. What are my options to truly make sure that they are taking my issues seriously. I don't want to sue but is blatant discrimination with out loss of a job something someone would sue for. Details below. Thanks for any help you can give me to prepare for my meeting tomorrow and make sure that my concerns and her actions are taken seriously.

 

Over the last few months my boss has been scheduling me more erratically then is normal for my per diem position and has blatantly given more shifts to the newest hired per diem which is not normal practice. Usually shifts are based on seniority. On many occasions I addressed this with her and asked her if she could be mindful of the scheduling and make it more equitable and fair. An example of her unfair scheduling is scheduling me for an evening shift followed by day shift (off work at 11:30 and back to work by 7am) therefore less than 5 hours of sleep with my commute. I always believed this was somewhat vindictive on her part but I did what I could to professionally deal with it and hopefully have her change/stop. Unfortunately her bias treatment continued and she refused to make any changes to the schedules. This has made the last few months working there fairly stressful and has had an impact on me mentally and physically. I like the job itself and have continued with it because of my hopes of a full time benefited position and a consistent schedule. Thankfully this position was given to me finally a month ago and was supposed to be effective September 12.

 

On Thursday August 25th my boss called me at home hours before I was scheduled to come into work and attacked me verbally about one word that I wrote in an email to her inquiring about if she intended to schedule me to work alone on two shifts. The conversation and how she talked to me shook me up and disturbed me deeply making my day at work extremely difficult. She called me into her office for a follow up and continued to behave inappropriately about the situation despite my demand for a third person present. She then sent me a follow up email summing up the meeting that was also full of lies about the meeting. I mention all of this because for the next few days I was an emotional sleepless mess because of how she was treating me and the work I was going to have to do to follow up on it knowing that our whole unit has issues with her but HR never does anything. This all occurred days before my yearly evaluation with her and I know she is the type to retaliate and I feared for what her evaluation would contain.

 

As expected my evaluation was full of lies and inappropriate statements to me by my boss. Including her telling me that my full time position was supposedly "canceled" by HR (as of now, turns out it was not and that this was a lie) for no particular reason in the middle of our meeting. HR said they had no idea about the cancellation of my position. I believe she did this so that I would sit there quietly and not disagree with the incorrect statements that she was saying about my performance in my job. I am glad that I did not sit quietly because she later made a false statement about my ability to navigate the computer systems that was verified as being wrong by her assistant manager who was put in charge of testing the whole unit. She then refused to remove the false statement and then demanded that I retake the test that she would administer to me herself. I absolutely refused because I felt it was inappropriate, unfair and discriminatory for her to retest only me when the person in charge of testing everyone had shown her the true positive evaluation that I received.

 

After this horrible evaluation, I had to return to work for five hours knowing that the one thing that I cherished (full time benefited position) had been suspiciously taken away from me by a woman who was willing to put blatant lies on my evaluation.

 

Sorry for the length of this letter but I wanted you to see the whole picture.

 

Thank you!!!

Customer

 

Expert:  socrateaser replied 2 years ago.
At the risk of repeating myself, unless you are complaining of class-based discrimination, i.e., race, color, nationality, ancestry, religion sex, sexual harassment, sexual orientation, pregnancy, equal pay between sexes, age or disability, then your employer can terminate you as soon as it determines that your complaint is a personal disagreement between your and your supervisor.

Meeting with your supervisor's supervisor and HR is irrelevant for the purposes of you retaining your job -- though it may be relevant to your supervisor retaining her job.

The botXXXXX XXXXXne is that if you are not raising a credible complaint about class-based discrimination, then your employer can terminate your employment, as soon as the determination that no class-based discrimination has occurred.

So, be careful with your meeting, because it could still go very much against you.

Hope this helps.

Customer: replied 2 years ago.

I actually have not lost my job. HR said I am not being fired. My question is what are my rights now that I am still an employee and my boss had done these things to me that are wrong. Putting false negative statements on my yearly evaluation, giving more shifts to the new employee, scheduling me unfairly versus him, demanding that only I be retested. I have no idea if this is based on race or gender. I hope it is not and I did not want to go there with HR but it all kind of looks that way. I am a black female as is my other coworker who is being scheduled the same unfair way. The new employee is Filipino like my boss. He has been given amazing schedules since he arrived despite my requests for equality. She expected only me to retake a test that our whole unit had to take because she could not believe that I did not do poorly on it. She only called me at home versus any of the other employees. I have no idea why she seems to be singling me out. But how would I know if it is for my race or not. I am actually sure it is but it is not like she has said it.

 

I just want to know what are my rights in terms of protecting myself from these kind of actions from her. Is it fair for them to just say she has been warned. What are my options to truly make sure that they are taking my issues seriously. Is it only an issue if it is based on of those types of discrimination. I guess I just feel like there must be something an employee can do if they are be treated differently and harassed at times if it is not blatantly based on race or something.

 

Since they say I have my job are you trying to tell me that in this meeting I need to be careful because they might just fire me anyway.

 

Sorry I hope this makes sense. Thanks for any help you can give me on this part.

 

Expert:  socrateaser replied 2 years ago.
I just want to know what are my rights in terms of protecting myself from these kind of actions from her. Is it fair for them to just say she has been warned. What are my options to truly make sure that they are taking my issues seriously.

Since they say I have my job are you trying to tell me that in this meeting I need to be careful because they might just fire me anyway.

A: I think we may be having communication problems. This is actually fairly typical, because employees, almost universally, have a fundamental misunderstanding about the employment relationship.

 

Cal. Labor Code 2922 provides that an employer can terminate an employee "at will" -- at any time, for any reason, or for no reason at all!.

 

In plain English, you could be the most wonderful employee who ever lived, and your employer coud acknolwedge that you are so wonderful, and your employer could further state that your coworker was the wort employee on planet Earth -- and then, immediately after those pronouncements, your employer could fire you, and promote your coworker.

 

What I'm trying to show here is that unless you can show the employer a credible threat of class-based discrimination, your employer can smile and tell you that it won't fire you, etc. -- and then, your employer can fire you, and you will have no recourse against the employer for doing so, unless you can prove class-based discrimination.

 

Now, there are a few exceptions, but thus far, I'm not seeing any that apply to your circumstances, so there's no point in confusing you with the exceptions.

 

Based upon what you have described, your strongest protection, frankly, is that you are of one race and your supervisor is of another race. That, in my opinion, is the only reason why you still have a job -- and, I don't care what your employer has thus far told you to the contrary.

 

Once again, in plain English, you have no right to anything in this upcoming meeting. No matter what you say, no matter what you do, your employer can fire you unless the employer believes that you have been discriminated by the supervisor based upon your race. So, if you want to make it difficult for your employer to fire you, then you will concentrate on the race issue. Otherwise, if the employer believes that there is no race issue involved, you may be on your way out the door.

 

Naturally, I'm just guessing about all of this, and I could be totally wrong. However, my experience is that I am "pretty darn good" at predicting legal outcomes.

 

Best of luck

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!



 

Customer: replied 2 years ago.
Okay so my questions are no longer about fear of being fired. They told me I have my job. My assumption is that tomorrow will be about how we can move forward and work together. I guess I ultimately want to know if an employee can do anything besides go to HR if their boss is doing bad things be it due to race or not. It sounds like you are telling me that the only way I can have a "case" is if the bad things my boss is doing is due to my race etc. I am also wondering if I just have to go into the meeting and just accept that they might discipline her and continue to work with the fear that she might eventually do these things to me again. I want to know my rights in terms of how I am treated by my boss. Not in terms of being fired or not. I just can't believe that they can keep her as an employee with her doing these types of things to me. The things SHE has done seem like things that would be grounds for termination. She literally wrote lies on my yearly evaluation ultimately effecting my career. She harassed me on the phone etc. Do you see my point. I just can't believe this is acceptable and that they are probably just though to say we told her to stop? So I am wondering if I have any rights in terms of this. I have to work with a boss who has made it clear that she is going to treat me differently then other employees for no reason.
Expert:  socrateaser replied 2 years ago.
1. If the employer has a written employee disciplinary policy, then you are entitled to sue for damages, if the employer violates that policy. However, this wil not protect you from being disciplined or terminated, as long as the disciplinary policy is followed.

2. You have the right to be free from class-based workplace discrimination. If you believe you are being discriminated against based on your race, or otherwise, you can complain to the Department of Fair Employment and Housing.

Other than the above, you have no rights. Your employer can tell you that you have a job one minute and that you're fired the next.

Hope this helps.

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