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Patrick, Esq.
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Experience:  Significant experience in all areas of employment law.
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I was recently laid off from aerospace company due to reduction

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I was recently laid off from aerospace company due to reduction in force. While on layoff notice, the company were to assist us in getting us a job in other Divisions within the company. I was able to get an interview (within the lay-off time period) at other sister div. The interview went well , everything looks great and i was told by the HR (via telephone) on Monday that they are in process making me an offer . Well come Wednesday the HR calls me and said upon reviewing my background check they found a internal memo regarding disciplinary action ( which was still under review without conclusion) from my laid off Div.they are withdrawing the offer . I explained to the hiring Div HR that , that memo is is wrong and is still under review . But no success. Well i lost the job and am back to square 1. Please advice .
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.

LegalPro54 :

Hello and thank you for entrusting me to answer your question.

LegalPro54 :

Does the disciplinary memorandum relate to the investigation of a possible criminal offense? I'm assuming that it does not, but the answer to this question will have some impact on the remedies available to an individual in this instance.

LegalPro54 :

I will await your response...

Expert:  Patrick, Esq. replied 5 years ago.
Hello again. I received your other question regarding the reply service not being functional. I am just an attorney/expert user of this site, but I will certainly alert the tehcnical people who run just answer of this issue.

In the mean time, we can continue our dialogue through this question and answer format. I had asked:

"Does the disciplinary memorandum relate to the investigation of a possible criminal offense? I'm assuming that it does not, but the answer to this question will have some impact on the remedies available to an individual in this instance."

Please kindly provide an answer and I will be very happy to continue assisting you. Best regards.
Customer: replied 5 years ago.
The memo is not criminal type. Its related to work being done
Customer: replied 5 years ago.
The memo was about work related. I was wrtten up for something not following the working procedures on the project. I am being used as an escape GOAT for somebody elses mistakes.
Expert:  Patrick, Esq. replied 5 years ago.
Okay, thank you for that information and your patience as we worked through those technical problems.

The reason why I asked about the memo being related to a potential criminal charge is because if it isn't, you likely have the right to request to view that memo along with the rest of your personnel file pursuant to Labor Code Section 1198.5.

If the memorandum contains any false statements of fact made by other employees or management regarding your performance, that may constitute defamation and you would have a cause of action against that individual personally for the damages that arose as a result of the statement being made (you failing to get rehired).

What's key is that the statement be a statement of fact, not merely an opinion that is not true. For example, "Bob was incompetent on project X" would be a statement of opinion and could not form the basis for a claim of defamation. However, the statement "Bob missed the big deadline by 5 days" would be a statement of fact because it is verifiable as true or false. Assuming the statement in the memo is a false statement of fact, that may give rise to a valid claim agains the party who said it.

Unfortunately, an employer is typically free to rely on such memorandums and reports in deciding whether to hire someone or rehire someone even if the statements contained in those memos and reports are erroneous.

This tremendous freedom stems from Labor Code section 2922, which provides that employment in the state of California is "at will," absent an agreement to the contrary. Courts have interpreted this to mean that, since an employer retains discretion to terminate employees for no reason, he or she also retains the authority to hire employees and dictate the terms of employment as it pleases, so long as the underlying basis is not discriminatory or otherwise in violation of California law.

So to summarize, while you would not have a cause of action against an employer for denying you rehire based upon a false or misleading memorandum regarding your performance, you can most likely request to view that memorandum and if it contains false statements of fact, you can sue the person who made those statements to recover damages for your loss of hire.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 5 years ago.
A system was under test by other group beside me , and certain procedures to run the test supposed to be followed. The group leader supposed to monitor the rules during the test. They are holding me responsible and a "GROSS NEGLIGENCE " memo was issued to me which i signed ( according to the employee handbook is not Final even after signing) but put a rebuttle with HR to contest. He never gave me any answer till my lay-off time. Its this memo that's in my folder caused my sister Div to withdraw the offer.My rebuttle was never answered by HR.
Customer: replied 5 years ago.
What else is needed from me?
Expert:  Patrick, Esq. replied 5 years ago.
I see. Regretfully, that does not sound like a statement of fact that would give rise to a claim for defamation because the questions of whether something constitutes negligence or gross negligence is subject to alternative opinions and is not objectively true or false.

Thus, while denial of rehire on this basis seems quite unfair, it is not illegal because an employer retains the discretion to hire and fire as it pleases pursuant to Labor Code section 2922 cited above.

I realize this is not what you were hoping to hear, and I wish that I could provide you with better news. Nonetheless, I hope that you appreciate receiving an accurate legal answer and explanation of the laws in this area.

If I have adequately addressed your question, I would greatly appreciate your "accept," as this is the only way us experts receive credit for the time we spend answering questions.

Thanks so much and have a good night.
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