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N Cal Atty
N Cal Atty, Attorney
Category: California Employment Law
Satisfied Customers: 8151
Experience:  Since 1983
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I am a female bartendar and was let go from my job on November

Customer Question

I am a female bartendar and was let go from my job on November 7, 2011. I was told it was a reduction if force as business has been very slow. I had most seniority, but was told that made no difference, and the other bartendar was male, which the boss said he wanted to keep him for weekends (which I also worked) I have been employed there for over 2 years. There were 3 of us covering the shifts. One girl had just given her notice, so that left 2 of us. So when he let me go, that left only 1 employee and the boss to cover shifts. The boss said that he and the other bartendar were going to be working and covering the shifts between the 2 of them. As I was leaving, the boss said, "oh, I guess I should tell you I'm bringing Ashley back" ( who is 25, and i'm 54) so he totally lied as to the reason he let me go. I felt like I had just been slapped in the face. Is this wrongful termination, as I was let go so he could hire someone else? I live in California. Also the boss had requested me to not ring up all sales through the register so they would not have to pay as much in sales tax, and I refused. That may been a reason also, but don't know for sure.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  N Cal Atty replied 2 years ago.
I'm sorry to hear this.

Firing you in retaliation for refusing to help cook the books and evade sales taxes by shorting the till was illegal. Giving you a fake reason for termination is suspicious in itself.

This also sounds like age discrimination, but there are too few employees for the age discrimination laws to apply. But firing an employee for refusing to commit an illegal act is illegal no mater how many employees work there.

I agree that you should follow up on this with a local attorney. You can get a free consultation from some of the employment attorneys listed by location at
http://lawyers.findlaw.com/lawyer/practicestate/Employment-Law----Employee/California

I hope this information is helpful.
Customer: replied 2 years ago.
You said its suspicious, what do you mean? Can an employer terminate you for any reason? Just want to make sure I'm not wasting my time by pursuing this.
Expert:  N Cal Atty replied 2 years ago.
An employer generally can terminate an employee for no reason, or for any lawful reason. Giving you a fake reason for the termination is suspicious.

I think he fired you for refusing to go along with shorting the till to avoid taxes, and that is an illegal reason to fire someone.

I urge you to follow up on this with a local attorney, I do not think you would be wasting your time.
Customer: replied 2 years ago.
Do I need some sort of proof about the till? Because its basically their word against mine.
Expert:  N Cal Atty replied 2 years ago.
A lot of cases come down to a question of credibility. The owner giving a false reason for firing you supports your claim.
Customer: replied 2 years ago.
His credibility isn't so good as he is losing his liquor license as he
Didn't disclose he was a registered sex offender.
Expert:  N Cal Atty replied 2 years ago.
I think you have a good case for wrongful termination, and again urge you to follow up on this with a local attorney.
Customer: replied 2 years ago.
I talked to one attorney, I was told that since California is a employer at will state and they can
Hire or fire for any reason. So this attorney said I really don't have a case. Your reasons you think I do are?
Expert:  N Cal Atty replied 2 years ago.
Labor Code § 1102.5(c) and (d)

1102.5. (a) An employer may not make, adopt, or enforce any rule,
regulation, or policy preventing an employee from disclosing
information to a government or law enforcement agency, where the
employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
(b) An employer may not retaliate against an employee for
disclosing information to a government or law enforcement agency,
where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or
regulation.
(c) An employer may not retaliate against an employee for refusing
to participate in an activity that would result in a violation of
state or federal statute, or a violation or noncompliance with a
state or federal rule or regulation
.
(d) An employer may not retaliate against an employee for having
exercised his or her rights under subdivision (a), (b), or (c) in any
former employment
.
(e) A report made by an employee of a government agency to his or
her employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a
corporation or limited liability company is liable for a civil
penalty not exceeding ten thousand dollars ($10,000) for each
violation of this section.
(g) This section does not apply to rules, regulations, or policies
which implement, or to actions by employers against employees who
violate, the confidentiality of the lawyer-client privilege of
Article 3 (commencing with Section 950), the physician-patient
privilege of Article 6 (commencing with Section 990) of Chapter 4 of
Division 8 of the Evidence Code, or trade secret information.
From
http://leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=01001-02000&file=1101-1106
Customer: replied 2 years ago.
I have unpaid overtime. Can I also request a copy of all my timecards
From 2010? I have the ones from 2011. And have OT unpaid from 2011. I suspect I might have
More due to me
Expert:  N Cal Atty replied 2 years ago.
Yes you can request copies of your time cards. Also, you can have the Labor Commissioner pursue your claim for unpaid overtime, and that office can obtain the time cards if the employer refuses to give them to you. There is no fee for that service, and you can also win what is called a waiting time penalty, see
http://www.dir.ca.gov/dlse/FAQ_WaitingTimePenalty.htm which states:

Public policy in California has long favored the full and prompt payment of wages due an employee. To ensure that employers comply with the laws governing the payment of wages when an employment relationship ends, the Legislature enacted Labor Code Section 203 which provides for the assessment of a penalty against the employer when there is a willful failure to pay wages due the employee at conclusion of the employment relationship. Assessment of the waiting time penalty does not require that the employer intended the action or anything blameworthy, but rather that the employer knows what he is doing, that the action occurred and is within the employer’s control, and that the employer fails to perform a required act.

http://www.dir.ca.gov/dlse/FAQ_Paydays.htm
states
An employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination. Labor Code Sections 201 and 227.3.
///
An employer who willfully fails to pay any wages due a terminated employee (discharge or quit) in the prescribed time frame may be assessed a waiting time penalty. The waiting time penalty is an amount equal to the employee's daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty (30) calendar days.

The claim form is posted at
http://www.dir.ca.gov/dlse/Form1.pdf

Division of Labor Standards Enforcement - District offices are listed at
http://www.dir.ca.gov/dlse/DistrictOffices.htm

The claims for unpaid overtime and the waiting time penalty are separate from the wrongful termination claim, which would be handled by a private attorney.

Please remember to click Accept if you are satisfied with my answers. And feel free to post any follow up questions you may have.
Customer: replied 2 years ago.
Does the waiting time penalty apply to back unpaid overtime if the employer thinks he did no wrong? They said they only pay OT over 40 hrs a week. I was only a hourly paid employee under no contract for anything different. Are employers required to keep the time cards from past years?
Expert:  N Cal Atty replied 2 years ago.
As they say, ignorance of the law is not an excuse. Unpaid overtime can be the basis for a waiting time penalty. California law requires overtime pay if you work more than 8 hours in one day, even if you worked less than 40 hours that week, see
http://www.dir.ca.gov/dlse/faq_overtime.htm

The FTB web site says to keep records for 4 years, see
https://www.ftb.ca.gov/businesses/keeping_records.shtml
but it is not clear if the employer is required to keep the actual time cards.

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