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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1952
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I came to my job on my day off to sign up for a class. The

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I came to my job on my day off to sign up for a class. The person in the educational office accused me of being rude or pugnacious. She reported me to my director who had me come in to talk to me about this. I denied the accusation, however, he told me he is going to write this incident up and log in my employee file. Is this legal? Should I be paid for the meeting with him on my day off?

Employment-LawExpert :

hello and thank you for your question today

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat


 

Customer:

Yes

Employment-LawExpert :

First, let me say that I am terribly sorry to hear that you are in this situation.

Customer:

Thanks

Employment-LawExpert :

It is a shame when an employer does something without legitimacy, especially, when that thing is quite frankly wrong.

Customer:

This is true

Customer:

How wrong is he?

Employment-LawExpert :

In response to your first question, unfortunately, your employer is allowed to place anything they would like in your employment file. The only caveat to this, is if they make a false statement of fact in your employment file, and this information is shared with others that end up causing you emotional or financial harm, then you would ultimately have a cause of action for defamation against them. As for being paid for having to come into the meeting, you should absolutely be paid for this time. Under IWC orders 1-16, Section 5, you are required to be paid for all time, even if unworked, as long as you show up to the office. The law states:

Employment-LawExpert :

"Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day's work, the employee must be paid for half the usual or scheduled day's work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay."

Employment-LawExpert :

Does that make sense?

Customer:

So I was there one hour and should be paid for 2

Employment-LawExpert :

You could make an unpaid wage claim with the DLSE and be paid both the time that went unpaid, as well as a waiting time penalty for all time in which you were not paid (up to 30 days) In response to your question, yes, you should be paid for 2 hours under the law.

Employment-LawExpert :

You could file your claim here:

Employment-LawExpert :

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Customer:

So if I am not working a shift he can write me up on someone else's complaint? When does this become harassment?

Employment-LawExpert :

Harassment occurs if the reason that you were written up is as a result of a protected category. A protected category can be things such as your age (40 or older), gender, race, religion, genetic information, pregnancy, national origin, creed, or disability. It would also be considered to be retaliation if you were written up as a result of a wage claim that you made. So, if you were written up later for something else, you could show that you were in fact written up not because of why they wrote you up, but because you made a wage claim. Because of the ridiculousness of the write-up this type of write-up would be good proof to prove your claim.

Customer:

But can he write a formal reprimand if I am not at work on the clock?

Employment-LawExpert :

Unfortunately, the only law that governs what can be put into a formal reprimand would be the law of contracts. So, he would have to follow whatever the policy and procedures are of the company. if there is a specific policy or procedure in place, and it was not adhered to, then you should speak to someone in HR about having the report removed. If you can relate it to a protected category, you could also say that this write-up was as a result of a protected category. Because there is no legitimate reason why you should have been written up, it is good proof of discrimination (if you can relate it to a protected category) Unfortunately, however, absent this, they are allowed to write you up because of the color of a shirt you were wearing if they decided to do that. I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.


 

Employment-LawExpert :

If you cannot relate it to any of these things, you should try to have an addendum added to the write-up specifically outlining that what occurred occurred when you were not "at work"

Employment-LawExpert :

Does all of that make sense?

Customer:

True. Thanks

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