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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27881
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Hi,On Feb 22, 2013 you provided answer to an ADA question

Customer Question

Hi, On Feb 22, 2013 you provided answer to an ADA question re my 41-year old daughter. She worked for Fry's Electronics since 8/4/99 but was transferred to sales on 3/4/13. She is learning disabled which hasn't improved much over the years but did not claim ADA in absence of a more current diagnosis, per yoru advice. The last one we have was 1994. She is pending reassessment by a Mental Health Dr.She failed to meet her sales quota wc resulted in a 5-day suspension and is now facing termination.


This is an employment law question. Why am I being re-directed to Family Law?

Submitted: 1 year ago.
Category: California Employment Law
Expert:  MaryMeadenEsq replied 1 year ago.

Hello there -

-

Would you like me to transfer this question to Doug? He is not currently online but will respond when he sees this message. I am also a family law attorney and an employment law attorney and would be happy to answer these questions for you if you would like.

 

Please let me know how you want to proceed.

-

MARY

Customer: replied 1 year ago.

No disrespect since you are also an expert in your field but Doug had advised me before and gave me options to consider, he is familiar with it. So, yes, please refer this to him in as much as my daughter just returned from Fry's right now and was told she was being let go.



The question left is do we have any other recourse since she did not claim ADA (I wanted her to function as normally as possible and not be subject to ridicule. She also signed paperwork of her transfer to Sales and the three Notices of Employee Counseling for not meeting production quota. Whatever she sold since her transfer, the commission earned was not reflected in the final Accounting report which she did not question for lack of understanding.


 


She claims to have verbally complained to the Managers of losing some of her commissions due to shrewd deception by whoever happened to input her sales for her in the computer but this complaint did not go anywhere. She was told just to" don't let them do that to you!"

Expert:  LawTalk replied 1 year ago.

Good evening Priscilla,

Thanks for asking for me. The first Professional you communicated was kind enough to contact me and let me know you were asking for me.

I am so very sorry to hear of your daughter's termination.

The problem with not having notified the employer of the disability and asking for specific accommodations is that the ADA requires that the employer both know of the disability and be asked for help in allowing the employee in continuing to do their job through reasonable accommodations. Because that was not done, there is no legal basis for a claim against the employer for a violation of the ADA.

For what it is worth, her signing of the three letters of counseling did not in any way prejudice her rights. By signing those notices, she was not admitting to having violated any company rule, but rather was just signing acknowledging that she had received the counseling. The document would have been valid as proof of the counseling whether she signed it or not. The real issue here was her not understanding the importance of the document and not discussing it with you earlier. Again, though, she cannot be blamed for misunderstanding the importance of the counseling.

The employer had the legal right to transfer her to sales---whether she agreed to it or not. And so, this is not a triable issue either.

If she has any commission coming, regardless of the fact that it was not reflected in the final accounting report, if she can show that the sales took place, she will be entitled to be paid.

If she was told, or signed a document holding that she would be receiving a commission, as opposed to the hourly wage of $11.50 she had been receiving, then under the law, presuming she was told that before they actually switched her over to commission, then they were within the law.

However, regardless of whether she was commission or paid an hourly wage, under CA law, she must have been compensated at least minimum wage in CA based on the hours that she worked. So, if she worked 40 hours a week, regardless of the commission she might have earned, the employer was obligated to pay her at least $320.00 per week---presuming that she was doing inside sales---working at the employer's business.

At this point if she can show that her commissions were negatively affected by the fact that some other employee negligently input her sales information, then she will be entitled to have her commission re-calculated and paid what is owed her.

I'm very sorry that this had to happen to your daughter. I wish her the best in her future.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

LawTalk, Attorney
Satisfied Customers: 27881
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
Expert:  LawTalk replied 1 year ago.
Good evening again Priscilla,

In follow up to my above answer, if your daughter---after our last discussion---explained to any manager that she had a disability that was interfering with her ability to do her job to the expectations of the employer, and asked for help or for some accommodation, it may not be too late to do something.

Do let me know whether this might have occurred.

Doug
Customer: replied 1 year ago.

Thank you so much for your reply.


 


My daughter said she verbally told at least three supervisors at work: the Store Manager, the Computer Sales Manager and the Front Check-out Department Manager, all within a few days before and after her transfer when she voiced out her concern about difficulty with sales because she has A.D.D.and does not understand anything about Sales. However, she did not directly asked for accommodation. The response she got from them was a funny look, an "oh, really?" and dismissively said "oh you know computers. You build your own computers". "Oh you already know our performance guarantee."At that time, she protested not knowing what goes with speed and computer specs so she told them, I will try.


 


During her counseling, she mentioned to the Store Manager and Computer Sales Manager that she was having difficulty learning about all the products to sell because she was expected to understand which ones paid more commission and which does not, that nobody told her anything. She was told she needed to learn everything and the main reason for them to get more profit is to sell more "performance guarantee with the products". She said they only mentioned to her about performance guarantee which customers rarely buy.


 


The problem I see here was that they transferred her to Sales but set her up for failure by not giving her any kind of training. When she applied for the job and was hired in August of 1999, she did not apply to do Sales. She did customer service and cashiering and in each, received proper training; and because of that training, she managed to do her job without any problems for more than 12 years. In Sales, the only thing she was told was how to sell performance guarantee and not about products, specs, etc.


 


She also reported to both managers that when she asked for help from other sales employee, they (sales employee/s) in turn asked her for "commission sharing". The only reply she got from the supervisor was, "don't let them do that to you".She has no evidence of her sales production because they did not mention to her until their last week's meeting, that they were supposed to make a copy of the sales quote they give their customers. The customer then takes it with them to the purchase counter when they pay. The only record of sales would be in the department's binder showing daily sales total.



Right now, my daughter has pending medical health issues. She has the pre-cancer breast counseling tomorrow and appointment with the breast surgeon. She also needs to see the Psychiatrist for further mental health reassessment appointment. Now that she has lost her job, I don't know how we can proceed to take care of these health issues.



Another question I have is, would it be appropriate to request her employer to change her status from "terminated" to "lay-off" so that she may apply for unemployment benefit while she looks for another job.After all, she has been a loyal employee for almost 13 years and performed her job well until her transfer to Sales. I plan to see the Store Manager tomorrow to give this a shot. But what do you think?



Any advice you can give me will be truly appreciated.




 


 

Expert:  LawTalk replied 1 year ago.

Good morning Priscilla,

Having explained to the 3 managers that she had a disability, they should have understood that she was asking for help of some kind. In explaining that she was having difficulty learning the products and that no one told her anything---that might be claimed was an attempt to seek some training in the process that her new position entailed---in effect a request for accommodation. Granted it is a weak request for accommodation, but at this stage of the game, it might be enough to make an argument to the store Manager that she should not have been let go as she was---because of her disability and their failure to make some accommodation---which appears to have been some period of training above and beyond what other employees might get.

Asking for help from co-employees will not legally constitute a request for accommodation, I'm afraid. Nor, were those employees' requests for commission sharing relevant to the accommodation issue when she reported the circumstances to the management. It might well be the norm that when co-employees in the store share in the selling of a product to a customer that there is a sharing of the commission from that sale. If that is the case---then the co-employees were not being mean in asking for a share----they were doing what they may always do.

As for asking for a determination that there was a lay-off rather than a termination, you may certainly do that. Or ask that it be deemed a Mutually Agreed Separation, and that will qualify your daughter for unemployment.

However, despite the fact that they terminated her for a performance issue, based on the fact that she has this disability, and asked for help (accommodation) even if the asking was something less than direct and obvious, a performance issue does not always preclude unemployment benefits. The argument can be made that because unsatisfactory performance lacks the element of an intentional and willing violation as would be the case with neglect or the intentional violation of company rules, procedures or safety instructions, that it does not rise to the level of misconduct and preclude qualification for unemployment benefits.

Finally, your daughter may still seek to get her position back based on the claim that she asked for an accommodation (see above for theory) and was not given the assistance that she needed, that it was improper for them to terminate her.

She may also seek to file a claim for discrimination as well---but in all honesty, because the disclosure of the disability and request for accommodation was not as clear as one would normally expect to see in a solid discrimination case, it will probably be the suggestion/threat to the store manager of the filing of a disability discrimination claim with the EEOC which will have more beneficial impact, than the filing of an actual claim itself.

Have a great week ahead.

Doug

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