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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6266
Experience:  Significant experience in all areas of employment law.
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I was terminated after a week with a window washing company

Resolved Question:

I was terminated after a week with a window washing company in retaliation for telling the owner about a hung over employee. My confidentiality was broken when he forwarded my text conversation to fellow co workers and had them meet the new morning before my arrival. The owner then tried to send me off after calling me arrogant and belittling me in front of his employees without my final pay.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you were let go from your job. Can you please tell me if you have received your final wages yet?
Customer: replied 1 year ago.
I started on 4/25 and was terminated on the morning of the 5/1. I received my wages for time worked up until Monday, I however did not receive wages for the 30min on Tuesday I was asked to come in. I was given the check after I stated the California law that I get my wages before termination. I was then handed my check and wished good luck by the company lead not the owner.
Expert:  Patrick, Esq. replied 1 year ago.
Thank you for this additional information.

Pursuant to Labor Code section 201, an employee must be paid all outstanding wages upon his or her termination. Labor Code section 203 imposes a penalty upon employers who willfully fail to make such payment in the amount of the employee's "daily rate" of pay (an average of what they were making daily) for each day that final payment goes unpaid up to 30 days.

So, if there is no legitimate dispute as to whether you worked 30 minutes on Tuesday, your employer would likely be in violation of Labor Code 201 for failing to pay final wages, and an individual in your circumstance would be entitled to your daily rate of pay for each day that such payment goes unmade up to 30 days.

In regard to your termination, an employer unfortunately retains the freedom to terminate an employee under the circumstances you describe. There are protections for "whistle blowers" in the state of California, but those protections only apply to employees who report illegal conduct, and it is not illegal (though it is unprofessional) to show up for work drunk. Furthermore, whistle blower protections typically only apply when an employee reports illegal conduct to an external regulatory agency, not merely to management within the company.

Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

Thus, while it may have been unfair to terminate an employee for reporting an employee who came to work drunk, that would not typically be illegal.

So to summarize, an individual in your circumstance may be able to collect a penalty in the amount of your daily rate of pay for each day that your final wages go unpaid up to 30 days. While termination under the circumstances you describe sounds quite unfair, it is not typically illegal because employment in the state of California is "at will" and whistle blower protections would not apply under the circumstances described.

To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

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

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 1 year ago.
What about the fact that my first text message was asking to come in and talk in private and he then sent the conversation to the employee I was informing him about without my knowledge? The employee is 20years old and received no disciplinary action and is a "team leader" within the company he sat there silent as I was being fired and was told everything that was going to happen to me. The owner and leaders all told me to not claim my tips on taxes and that they don't claim them, I have filled out a 211 form with the IRS and have yet to send it.
Customer: replied 1 year ago.
Relist: Answer came too late.
Answer my response.
Expert:  Patrick, Esq. replied 1 year ago.
Unfortunately, employees have no right to privacy in regard to conversations with managmenent about employment matters. No law would be broken by a manager sharing with other employees statements made by an employee in supposed confidence.

While of course it is illegal not to declare tips on your taxes and other employees at your former employer may be violating the law by not doing so, this would not make your termination wrongful unless you reported these employees to the IRS and were then terminated in retaliation for making such report. That would be a circumstance in which the whistleblowing laws I discussed above would come into play.

But, if you did not report such conduct and were not terminated specifically for refusing to engage in such conduct, then this would be irelevant in assessing the lawfulness of your termination.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
Customer: replied 1 year ago.
If the employees there work 52hours a week on average would the daily overtime be included for the average rate of pay? I made 123$ monday and was expecting to work 22 of the 30days this month.
Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your reply.

Overtime wages are considered part of the "daily rate" only if the overtime is regularly scheduled each week. Having been employed for such a short period of time, this may be difficult to show, but if an individual in your circumstance can demonstrate a pattern of overtime received on a particular day with the expectation that would have continued, it can be factored into the rate.
Customer: replied 1 year ago.
It's hard to prove my overtime we did not have a set schedule it was 630am start and my longest day was 10.5hours the time I was there and Monday which I considered average day.
Expert:  Patrick, Esq. replied 1 year ago.
That it was "regularly scheduled" is certainly an argument you can make the the DLSE.

I hope that I have answered your questions.

Kindest regards XXXXX XXXXX of luck resolving this matter.
Customer: replied 1 year ago.
"What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law." so firing a hard working dedicated employee and keeping the other guy in his company isn't "discriminatory"? I was basically discriminated against because I work hard and stand up for myself. He wants mindless drones that don't question authority.
Expert:  Patrick, Esq. replied 1 year ago.
No, it is not discriminatory, unfortunately.

Discrimination only occurs if negative employment action is taken as a result of an employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. (Govt. Code 12921)
Customer: replied 1 year ago.
One last question.. I signed a non compete agreement for a length of 10years or 25miles. Is this considered reasonable if I only worked 5 days and didn't take away any "trade secrets"? I am wanting to start up a 1-4man window washing company..which wouldn't be much competition to a 30year old 15man company.
Expert:  Patrick, Esq. replied 1 year ago.
Fortunately, California is a state that strongly disfavors the enforcement of non-compete agreements. Such agreements are automatically void as a matter of law in California, except for a small set of specific situations expressly authorized by statute. Specifically, Business and Professions Code section 16600 states: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."

The exceptions are a bit complex but include the following: (1) If an owner is selling the goodwill in their business (goodwill is the reputation and name of the business); (2) When there is a dissolution or disassociation of a partnership or (3) Where there is a dissolution of a limited liability company. There is also a limited exception for "trade secrets."

If an individual in your circumstance does not engage in competition using "trade secrets" and none of the other exceptions outlined above apply, the agreement would be void and unenforceable pursuant to section 16600.
Patrick, Esq., Lawyer
Satisfied Customers: 6266
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 2 other California Employment Law Specialists are ready to help you

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