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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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My Daughter works for a fast food chain in California. This

Customer Question

My Daughter works for a fast food chain in California. This company posts the work schedule for the following week every Friday. On Friday afternoon, a couple of weeks ago, she was getting ready to leave and went in to check the schedule. The schedule had not been posted yet. In the meantime, she had lost her cell phone. She already new that she had Saturday and Sunday off. But that Monday (Memorial Day) she used a land line to call a number that was posted on the internet for her particular store location to find out if she was working the holiday, but got no answer. She called again later that morning and got no answer. She then tried a third time and got no answer. She then found her phone, which ran out of battery charge, put it on the charger, and a few minutes later got a call from her manager asking her why she didn't show up to work that day. She explained what had happened and that she had tried to call several times but got no answer and thought maybe the restaurant was closed for the holiday. The manager then stated that she was lying and he didn't believe her and then suspended her for a week. Is this legal??

She is the only female in this place. One of the guys that works there told her that he had many "no-shows" in the past and was never placed on a step of discipline. She has that conversation on her phone's text messaging. thanks
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good afternoon Teri,

I'm Doug, and I'm very sorry to hear of your daughter's situation. My goal is to provide you with excellent service today.

I have to say that if your daughter knew that she was normally on schedule for the following Monday, and was unable to reach anyone to confirm the fact that she was in fact scheduled, she should have dressed and gone in rather than presume that she was not on schedule.

Under CA law, a "no-call, no-show" constitutes grounds for not only discipline, but for termination as well.

However, that being said, the employer has a legal obligation in CA to treat their employers fairly and with good faith and fair dealing. For an employer to discipline her so much more severely than the male members of the crew for the exact same violation raises a red flag that there indeed may be discrimination going on here.

She also has a right to ask to be able to review the employee handbook, and she cannot be retaliated against because of that.

As for any discrimination, she does have a legal remedy. CA law prohibits harassment and discrimination in the workplace and if this is happening to her, she does have a legal remedy.


Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards XXXXX XXXXX as undesirable or offensive.


In CA your daughter has two possible avenues of approach to dealing with discrimination. If her goal is to ultimately sue in Federal Court, then she will file a complaint with the EEOC, and if she wants to be in the CA Superior Court---local to your county---then she will file with the DFEH and, if she wants to, she may file with the EEOC as well. She must file a formal complaint of discrimination with the EEOC within 300 days of the alleged discriminatory act, and within one year for the CA DFEH.

She may file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on her gender.

To do this she must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. She may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide her through questions to determine whether an appointment is right for her.

Alternatively, she may file a complaint with the EEOC (Equal Employment Opportunity Commission). If her company has 15 or more employees (the DFEH only requires that there be 5 or more employees), they are prohibited from discriminating against her. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov

Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.


After she files the complaint, her employer will be prohibited from any retaliatory action against her. The EEOC will investigate her claim, and 180 days after the filing of the complaint she may ask for a "right to sue letter". The EEOC will issue her the letter which gives her the right to institute a private civil action against her employer and seek monetary damages.

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: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 4 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Doug,


 


Thank you for your quick response.


 


I agree, she should have driven herself to work that day.


 


As for the discrimination, she also told me that her manager has not hired any females since she's been there (over 18 months). She has, in fact, seen many females come in for interviews but never get hired.


 


She also had a run in with the manager when he demanded she wear a hair net while working at the counter/cash register, but he did not require the men, who were cooking burgers, wear one because they have short hair. California law says she would not be required to wear one while working the counter.



Personal cleanliness &


hair restraints


CalCode


113969


113971


All employees preparing, serving or handling food or utensils shall


wear clean, washable outer garments or uniforms and shall wear a


hairnet, cap, or other suitable covering to confine hair.


Minor


Violations


Food employees preparing, serving or handling food or utensil are


not wearing hair restraints, such as hats, hair coverings or nets.


Food employees observed with soiled clothing.


Exceptions:


Food employees such as counter staff, who only serve beverages and wrapped or


prepackaged foods, host and wait staff, need not confine their hair if the hair


presents a minimal risk of contaminating non-prepackaged food, clean equipment,


utensils, linens, and/or unwrapped single-use articles.


I will have her file a complaint with the EEOC

Expert:  LawTalk replied 1 year ago.
Good evening Teri,

Wow, the more you tell me about the management at this restaurant, the more it is beginning to sound like there is active sex discrimination going on here.

While it is fine to have her file with the EEOC, don't forget the DFEH. If she ends up suing, it will be much easier for her to find an attorney to sue in the local Superior Court---as opposed to having to go to federal court---and only the DFEH letter to sue will result in her having a right to state in the CA court system.

Thank you for your positive rating of my service. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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