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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I was given verbal notice by my boss and hr last week for poor

Customer Question

I was given verbal notice by my boss and hr last week for poor performance which has never happened before in my 25+ yrs of working. Some facts.
Here has even. No written warnings or proactive feedback. (I had to ask twice). Last Jan I finally divulged that I had cancer and was finalizing treatment since it seemed cured. I also informed my leadership team 2 wks ago that my mother ws dying and I was taking care of her, together with my sister. I am Latin, female and over 40. I am thinking of asking for paid medical or family leave but someone said I can't do this once they give me notice. Again , no written performance warnings. No feedback proactively given in past. What are my rights here? They've given me a couple days to "think about this " so I'm checking if I have any cause for legal action.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.
Good morning,

I'm sorry to hear of the situation.

First of all, we need to determine whether you qualify for leave under the FMLA.

To be eligible for leave under the FMLA or the CFRA in California, an employee must be either a full-time or part-time employee, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period (24 hours per week) before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee's work site.


Based on these criteria, do you believe that you qualify? If your answer is yes, then you have the right to take up to 12 weeks leave to care for yourself or an immediate relative who has a serious medical condition. The fact that you may have been recently given a warning or notice does NOT prevent you from exercising your rights under the FMLA. All you need do it tell your employer or HR office that you need to take FMLA leave to care for your ill mother. The law will allow you to take this leave, and you may not lose your job or be retaliated against because you ask to take, or take, this leave.

If you believe that you are being discriminated against because of your race, age or gender, you may file a formal complaint of discrimination as well.

CA law prohibits harassment and discrimination in the workplace and if you have been discriminated against, you do have a legal remedy.

Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards XXXXX XXXXX as undesirable or offensive.


In CA you have two possible avenues of approach to dealing with discrimination. If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well.


You may a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on your race and/or national origin, age or gender.

To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees, they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov

Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.


After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.

I hope you found my answer informative.

I wish you the best in 2012.

Doug
Customer: replied 2 years ago.
I've not been there 12 months yet but I think they will be open to fmla. My main question is about documentation for non performance. Can they give me warning as they did with no written notices or plans for improvement ? Company is an "at will" employer but I dot get the nuances of that term. Can u clarify that as well?
Expert:  LawTalk replied 2 years ago.
Good morning,

Unless the company policy---the employee handbook---holds that you MUST be given written notices or improvement plans if you are giving a warning, then I'm afraid they can do whatever they want. There is no CA law requiring ant type of improvement plan for an employee given a warning.

As for the significance of an employee-at will, unless you have a written contract of employment with your employer, you are considered an employee-at-will. This means that there is likely little protection afforded you relating to unreasonable supervisors/bosses, as well as the typical workplace politics and drama which can be so troublesome.

In California, employees are presumed to be "at will." At-will employees may be terminated for any reason—at any time, even a mistaken reason, they can have their hours or pay decreased and they can suffer a cut in their benefits, so long as it's not illegal or unlawfully discriminatory. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. In your state, an employment relationship is at-will unless there is a defined duration for the employment contract or if the contract permits termination by the employer only under specified circumstances.

Unlawful discrimination would include an employer discriminating based upon a person’s Ethnicity, Color, Religion, National Origin, Gender or Disability.

In CA there is an exception to the employment-at-will situation, even if there is no formal, written employment contract, and that exception is known as an Implied Contract. To qualify as an implied contract an employee would need to show that either through some informal writing or a verbal commitment, that they have been promised continued employment or guaranteed that they would not be terminated or disciplined without some sort of due process (grievance hearing or warning in advance). In the latter circumstance, this agreement can often be found in the company's employee manual.

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

If you have additional questions, please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me.

Thanks Again,

Doug
LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 3 other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
One last question
If my doc says I'm under too much stss ( he has) from my chemo and moms illness, what's the max amount of time
Allowed for paid medical leave
Expert:  LawTalk replied 2 years ago.
Good morning.

If you are disabled by your physician, you may apply for CA State Short Term Disability Leave---which is paid much like unemp[loyment. The maximum anmount of time you may collect Short Term Disability benefits is one year.

Here is a link which discusses this state benefit:

http://ca.db101.org/ca/programs/income_support/std/faqs.htm#_q903


I wish you well.

Doug

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