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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5276
Experience:  Extensive experience representing employees and management
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What rights do I have when I am placed on an action plan with

Resolved Question:

What rights do I have when I am placed on an action plan with no clear dates for improvement and then I get a written warning for the same issues in less than 60 days time. I did meet the requires one of the two months and they are not even considering the improvement. What rights do I have as an employee and how should I proceed as I feel as if they just want to get rid of me.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcometo JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Do you have an employment contract with your employer or are you a member of a union?

Do you have any reason to believe that your unfair treatment is due to discrimination based on a protected characteristic (such as race, gender, national origin, or ethnicity)?
Customer: replied 1 year ago.

Hi Joseph


I don't have a contract with my employer. I work for a large bank in Southern Ca. They have recently changed many of the positions at the bank and they had informed all employees that everyone would have a job. I was given the action plan on Jan 9th 2013 and the target date for completion or improvement was left blank. Then on March 6 my supervisor came into my office and gave me a written warning at my desk where several employees could hear. As far as my plan, I was out sick under doctor's care for 1 week of Jan and so I really only had 2 full weeks to make the goals. For Feb 2013, I achieved the goals assigned but was still written up. I just want to know if I have any rights to fight this at all? I was told by my boss that we were at an unfair advantage because the new employees hired would have a book of business and we just have our existing clients and have to cold call for business. I feel they want to hire another person who has business to bring instead of keeping the current employees.

Expert:  Joseph replied 1 year ago.
Hello Christine,

Unfortunately, no you don't have any rights to fight the action plan and the unwarrented written warning that you received as an at-will employee.

As an at-will employee, you can be disciplined and/or terminated at any time for any reason (even a bad or false one) with or without any prior notice.

This stems from the employment at-will doctrine, which is codified in California Labor Code Section 2922 and states:

"An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."

Unfortunately, it is legal for your employer to take negative disciplinary actions
against you to 'force you out' in favor of new employees, as long as it
is not doing so due ot discrimination based on a protected characteristic.

I sincerely XXXXX XXXXX had better news to give you (and personally believe this is
an unfair and inhumane law), but I hope you appreciate a direct and honest
answer to your question.
Customer: replied 1 year ago.

Ok so you are telling me that employees have no rights when you are "at will". So the employer can do anything that they want...this just does not seem right at all especially when I did something that they asked me to which was increase my production. Does it matter that the Performance Plan was not date specific even when the HR document clearly says it must be dated?


I was also given an award in Feb for the highest number of cash management sales and the highest number of investment referrals so if I really was a poor performer, why would I be given those awards??

Expert:  Joseph replied 1 year ago.
Hello Christine,

Yes, unfortunately, an employer unfortunately has the discretion to treat employees how they want if they are at will employees.

I enitrely agree that your situation is unfair and unethical, but unfortunately it is legal.

The HR document would only benefit you if you are terminated and your employer tries to deny you unemployment insurance, since then you can demonstrate that your employer failed to follow its own procedures.

The award that you were given for the highest number of cash mangement sales and highest number of investment referrals seems to negate the allegations that you're a poor performer, but this doesn't give rise to any cause of action against your employer.

(Although again it could be used if your employer contests your unemployment benefits).

I would definitely suggest that you bring this up with HR, since it really doesn't seem to make any sense that you would be disciplined with a written warning, when you were a top performer and not a poor one.
Expert:  Joseph replied 1 year ago.
Hello Christine,

Please remember to rate my answer positively so I get credit for my work.

Or, please ask me any follow up questions you have.

Customer: replied 1 year ago.

So sorry as I was talking with a co-worker who is in my same position and also on written warning and she had a meeting with our boss today and she is refusing to sign her written. Does is help or hurt not to sign the warning?

Expert:  Joseph replied 1 year ago.
Unfortunately, it really doesn't have any bearing on your situation.

If it were to do anything, it would likely hurt your situation, since your employer can decide to terminate you for refusing to sign the warning, and it wouldn't help your unemployment claim, since signing the warning only recognizes that you received it, not that you agree with it.
Customer: replied 1 year ago.

Well thanks for the answer. I signed my warning so I guess I am just waiting to see how this plays out. Thanks again!

Expert:  Joseph replied 1 year ago.
Thank you; happy to help and best of luck!
Joseph, Lawyer
Satisfied Customers: 5276
Experience: Extensive experience representing employees and management
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Joseph
Joseph
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Extensive experience representing employees and management