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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32721
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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I have been a union employee since 2002 at my place of employment.

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I have been a union employee since 2002 at my place of employment. I quit for a small period of time and was re-hired at after I had been gone for approx 5 months. when i returned to my job, everyone, (manager, HR, clinical supervisor) stated that since I came back before 6 months that all my seniority was intact. I have been working under the seniority date of 1/2002 for the past 5 years since my reinstatement, and being paid and treated accordingly in regards XXXXX XXXXX etc. my place of employment has changed names and is going through many changes. there has been talk of lay offs and numerous time i have spoken to my manager and have been reassured that my position was not in jeopardy. come to find out, the union put out a new seniority list and they had my seniority date as 2007, not 2002. when I contacted my union rep, she said that since I left the bargaining unit for more than 45 days, that my seniority date then gets pushed up to whey I was reinstated. layoffs are indeed happening in my hospital and now i am one with very low seniority and my position is in jeopardy. no one ever let me know of this altered seniority date and when I spoke to my manager, she was equally as suprised and just said "i am sorry". past practice for the last 5 years has been that I have been treated with one senirotiy date, and now it has magically changed. it also stated in our union contract that " the employer shall mantain seniority lists which will be provided to the union once every six months. why was this not caught. do i have any legal action here?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.
Hello and welcome,

Did the agreement that was in place when you returned to work indicate that the company and union would recognize your original hire date for purposes of determining seniority because you had been gone less than 6 months?

Customer: replied 2 years ago.


The compnay yes, the union, no. they said if i was gone greater than 45 days the new date applies. I did not know this nor did anyone inform me, but they stated that it was in the contract. I do not have a copy of the contract from 2007

Expert:  Tina replied 2 years ago.
Hello again,

I am not sure what you mean by the company said yes but the union said no. The union is claiming that the bargaining agreement in effect when you returned did not provide that your original date of hire would apply?

Customer: replied 2 years ago.


the union is telling me that there is two dates. a union seniority date and a hospital seniority date. when i mentioned this to the my manager, she was also unaware of this. the hospital seniority date is used for pay scale, and retirement, benefits, etc. apparently, the union "seniority" date is used for seniority purposes in regards XXXXX XXXXX holiday and vacation requests and reduction in force, which is my immediate concern.


 


as stated above, there is mention several times of this 45 day clause. i understand that, the fact that no one informed of this change in seniority until the very last minute is what I have a problem with. there has been alot of instability at the hospital and others who knew that their seniority was low, have been out getting additional work or new jobs altogether, because they knew that they were in jeopardy. I had NO idea that i was in jeopardy, so i was not out seeking additional employment opportunities because i thought i was fine and many conversations with my manager led me to believe i was fine as well. no all of a sudden i have 13 days to decide to take severance and walk away, or be moved to a night shift position which i do not want to do. does that fact of "past practice" hold any weight here, the fact that I have been treated as an employee with a seniority date of 2002. (sorry if i am getting wordy here...)

Expert:  Tina replied 2 years ago.
Hello again and thank you for the additional situation. This makes a more sense to me now.

Since you have previously been repeatedly informed that the company/union would be using the 2002 seniority date, you would typically have an argument that you have "detrimentally relied" on that information provided by them and they should not be permitted to change the date now, at least not with regard to this RIF since you have had no time to prepare as other employees have had.

Detrimental reliance is an equitable theory used to prevent an injustice from occurring even if the contract does indicate that the later date should be used.

It would be best if you retained a private labor/employment attorney to communicate this to the union/employer in an attempt to resolve the matter in your favor. If they are not willing to avoid litigation by reverting to the earlier date, then the attorney may need to file a petition with the local court seeking to enjoin them from laying you off.

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

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Tina, Attorney
Satisfied Customers: 32721
Experience: JD, 17 years experience & recognized by ABA for excellence in employment law.
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