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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34348
Experience:  Retired (mostly)
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Hello, Yesterday I was told that my position was being eliminated

Resolved Question:

Hello,
Yesterday I was told that my position was being eliminated due to changing business model and was offered two months severance pay. However, when I got home and read the letter it said the following: "As you are aware, the responsibilities for your position are changing from the need to support growth and expansion Currently you do not possess the qualifications necessary to support growth of the company at the skill level required for the position. While (company name) provided you the opportunity to develop these skills, to date you have been unable to improve your proficiency to the required level to meet our business needs. As a result, your current position is being eliminated due to job fit." In 4 years with this company I have received only very positive annual reviews and raises and never once was I told that I needed additional skills, nor was I provided any opportunity to develop these unnamed skills. There is nothing in my employment record that would back this statement up. There is a contract employee currently working under the same job title as my position. My questions are: 1. Assuming that there are no documented job skill issues, does my employer have any obligation to let go of a contract employee doing the same job title before they let go of a permanent employee. Note that I am the only female and the only person not former military in my department. In addition, I am over 40 years old. 2. Do I have any grounds for a discrimination case? 3. If I attempt to negotiate a higher severance, is it your opinion that I could be successful in this?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
1. Assuming that there are no documented job skill issues, does my employer have any obligation to let go of a contract employee doing the same job title before they let go of a permanent employee. Note that I am the only female and the only person not former military in my department. In addition, I am over 40 years old.

A: There is no obligation to terminate a contract (legally termed "leased") employee in preference to any other employee -- absent some written promise to the employee as part of the contract of employment.

2. Do I have any grounds for a discrimination case?

A: Unlawful discrimination requires, at a minimum, proof that: (1) the employee is a member of a protected class (race, color, nationality, religion, sex, age, disability, etc.); (2) the employee is qualified for the job position; (3) the employee suffered an adverse employment action from the employer.

Any time that an employee is terminated where the employer claims inadequate performance, and the record suggests otherwise, there is the possibility of unlawful discrimination. However, many employers do not keep performance records with anywhere near the sort of precision that employees might believe, because by doing so, it actually impairs the employer's ability to terminate employees "at will." The point is that when the employer states that your performance is inadequate, it could be unlawful discrimination, but unless and until sufficent evidence is produced to connect the dots between employer actions and employee detriment, there's frequently no easy answer.

The problem for the employee is that without a "smoking gun" (e.g., supervisor flatly offers employee promotion in exchange for sex, and conversation is overheard by another employee), proving employment discrimination can be too expensive for either an employment rights attorney or the government (EEOC; DFEH) to risk the cost of an investigation followed by a potential trial.

This causes many valid cases of unlawful discrmiination to never come to fruition. BotXXXXX XXXXXne, I'm not seeing anything that jumps out and shouts unlawful discrimination -- so, while this doesn't mean that you have no case -- it does mean that the case needs evidentiary support if it's to go anywhere.

3. If I attempt to negotiate a higher severance, is it your opinion that I could be successful in this?

A: Severance is not required. The only reason why employers offer severance is as consideration for a waiver of the employe's right to sue on any issue. Your ability to obtain a greater severance is directly correlated to your proof of unlawful discrimination. Based upon what you have disclosed here, I wouldn't be too hopeful. You have nothing to lose by trying to negotiate, though.

In closing, please understand that I "justanswer" questions “about” the law. I cannot be rsponsible if the law does not favor your unique circumstances. The best that I can do is to explain what the law "is" and what it "is not."

For an employment rights lawyer referral, see 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!

Customer: replied 3 years ago.
ToCustomer Can you please clarify what you men by your respones to #2 "until sufficient evidence is produced to connect the dots between employer actions and employee detrimnet....". What would be sufficient evidence? If all my written and signed reviews are good and there is no mention of lacking skills and a course to acquire them, where is evidence of the claim? I don't understand why they would write this instead of just saying that they are reorganizing, have no work to support the position, etc. Why try to put the blame on me so to speak?
Expert:  socrateaser replied 3 years ago.
The fact that you have had no poor reviews combined with the flat statement of your employer that your performance is poor, obviously suggests some undisclosed reason for your termination.

However, the lack of disclosure does not immediately point to any discriminatory motive. The employer can terminate the employee for a good reason, a bad reason, or for no reason at all. The employer can tell you that you're the greatest employee who ever lived, and then immediately fire you and retain an employee that it has repeatedly claimed was completely useless.

In sum, employers do not have to be intelligent in their decision making. They can be (and frequently are) absolutely moronic in the conduct of their business -- and yet remain without legal liability, as long as the employer does not actually engage in unlawful discrimination, or some other prohibited conduct.

If your employer has a written disciplinary policy that requires certain processes before termination, and the employer fails to follow that process, then you could sue for breach of the implied covenant of good faith. But that won't save your job -- it will only get you lost wages until you find new employment (assuming you win).

Proving unlawful discrimination requires that the facts do more than merely infer something is wrong. You must prove that the employer's actions actually discriminate against you based upon one of the protected classifications.

If the employer terminates other persons over age 40, and yet it hires or retians employees who are also over 40, then that doesn't make for unlawful discrimination. Similar result for sex, color, etc.

So, you need to find a way to "connect the dots," i.e., show that the employer's actions actually operate to create unlawful discrimination. And, that can be quite difficult in many instances -- which will generally cause an employment rights lawyer to decline the representation, because of the risk of losing the case. Same goes for the government -- which is buried with discrimination complaints and generally only actively investigates cases where many employees are affected, or the discrimination is overt (smoking gun).

BotXXXXX XXXXXne, you may have a case or you may not. I just don't see it staring me in the face from your facts, and shouting "You are a winner!"

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: 34348
Experience: Retired (mostly)
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