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Brandon M.
Brandon M., Counselor at Law
Category: California Employment Law
Satisfied Customers: 12235
Experience:  California licensed attorney
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have worked at site for 2 yrs new FOH hired in has hired a

Resolved Question:

have worked at site for 2 yrs new FOH hired in has hired a friend at same position (now 4 of us as captian) have virtually been removed from work days etc etc and more...
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Brandon M. replied 2 years ago.
Hello there:

Thank you for entrusting me with your question. It appears that this is just a classic case of favoritism for friends. Is that your assessment as well?
Customer: replied 2 years ago.
Yes it does yet there is more.....I was removed from picking up and delivering wine and beer because I was not an exempt employee and it was against the law to do so .. had not worked in last 14 days with no explanation...and more
Customer: replied 2 years ago.
Sorry Mr. Meyer......I do not see your response
Expert:  Brandon M. replied 2 years ago.

I am not sure why it does not appear. Let me try again:

 

There is no question that it is bad business to hire and promote based on friendship, but California is an employment-at-will state, which basically means that either the employer or the employee can modify or terminate the employment relationship at most any time and for most any reason. For this reason, unlike some other jurisdictions, there is no presumption that the employer has an unequal bargaining position, so there are no extra protections in place for the employee; if either side does not like their arrangement, they have the right to quit. The employee can quit the relationship if he does not like the employer, and the employer can quit the relationship if it does not like the employee. So an employer can generally discriminate against an employee for most any reason. It's not fair, but it's generally legal.

 

This is not without limitation. Some reasons for discrimination are illegal; for example, it is illegal to discriminate against an employee because of their race/color, gender, religion, ethnicity, age (if over 40) disability, genetic information, or in retaliation because the employee is a whistle-blower. It is not illegal, however, to modify or terminate the employment for reasons that are simply unfair or ill-informed. Personal politics is generally a valid reason for discrimination.

 

Some companies have internal procedures for employee pay increases, reduction or termination. Usually, these procedures exist as a company safe-guard to avoid a lawsuit alleging termination based on an illegal reason. However, when these procedures are incorporated into an employee manual and distributed to the employees, it can create a guarantee of sorts upon which the employee may legally rely; so, for example, it may create an enforceable guarantee that the employee will have her salary increased for certain reasons or under certain conditions.

 

Sometimes there is a contract in place with the employee. That too can create rights for the employee; however, an action for violation of an employment contract is considered a suit for breach of contract.

 

But generally, "no" there is no extra protection in place. I do not have good news in that regard. If the circumstances were just a guise for something else illegal (like age discrimination), it would be illegal. Otherwise, the employer would generally be within its rights.

 

You should be aware that quitting does not necessarily disqualify someone from collecting unemployment. Title 22, of the California Code of Regulations, Section 1256-23(f), provides:

A claimant who leaves work due to mere annoyance with or a general dislike to another employee or his or her supervisor leaves without good cause. A claimant leaves with good cause if he or she leaves work due to a course of conduct by another employee or his or her supervisor which subjects the claimant to continued abuse, endangers the claimant's health or safety by such conduct as actual or threatened violence or acts affecting the claimant's mental well-being, causes demands for an unreasonable quantity of work to be produced by the claimant, or unreasonably discriminates against the claimant.

Also, a significant reduction in work hours is, by itself, also "good cause" for quitting and collecting unemployment.

 

I understand that you may have follow-up questions. Let me know if further clarification is needed, and please keep in mind that the experts are not credited for unaccepted answers; even where I cannot solve every problem in a case, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be. Thank you.

Customer: replied 2 years ago.
Mr. Meyer........I am 63 and collecting SS...this is a seasonal job....we are in season now...have worked last 2 yrs at full time ....understanding they can do what they want this new manager started in October 2011....she has shown herself as unreachable...trying to communacate is difficult....is ther any to talk by phone my dime hard to express by type...besides I do not like to communicate this venue.
Expert:  Brandon M. replied 2 years ago.

In some ways this forum is very accessible, but in other ways it is prohibitive. We are not set up right now to provide telephone consultations, but there is no fire here, so if you have additional questions or concerns, please do not feel rushed.

Customer: replied 2 years ago.
Do I have to accept answer before going on to the next or can we just wrap it up in one shot at the end
Expert:  Brandon M. replied 2 years ago.
You can accept any time, but accepting does not preclude the exchange from continuing.
Customer: replied 2 years ago.
Trying to say this on type is so slow and wasting time....do I just sit back and take the abuse.......can I collect edd.......what direction do I go in
Expert:  Brandon M. replied 2 years ago.

It is slow, but look at it this way: every attorney's office in the state is closed right now, and you likely could not get in to see anyone until the middle of next week. In that context, I hope that I am worth your time.

 

I am the expert on the law, but you are the expert on the facts. I can give you the options, but how to proceed is up to you.

 

You can keep working for the employer, or you can quit. If you quit based on significantly reduced hours or unreasonable discrimination, you are not disqualified from collecting unemployment based on quitting. Sometimes, there are degrees of losing in life and it is just a matter of choose the best of bad options, but there is no shame in choosing either.

Customer: replied 2 years ago.
I'm really not happy with this format nor am I going to take away from you.....and can read a voice better than I can the type. Thank you for your time att... if I need more info do I ask for you since you have all the questions.....
Expert:  Brandon M. replied 2 years ago.

It is no bother to me, but I can't fault anyone for preferring in-person contact. I will be available if you have additional questions. Let me know if I can do anything else for you, and please remember keep in mind that the experts are not credited for unaccepted answers; even where I cannot solve every problem in a case, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be. Thank you.

Brandon M., Counselor at Law
Satisfied Customers: 12235
Experience: California licensed attorney
Brandon M. and other California Employment Law Specialists are ready to help you

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