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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5123
Experience:  Extensive experience representing employees and management
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Hello, I have an employment situation that I need guidance

Customer Question

Hello,

I have an employment situation that I need guidance on. I am a dental hygienist and work in a dental office in Sacramento, CA. Here's the abridged version of my situation:

06/19/2013
I was called into a meeting (meeting 1) with my office's management. In our office, the dentist (the actual business owner) is not part of the office management team. I was presented with a formal written "Corrective Action Notice and Record" (write-up). In my opinion, the write-up did not contain accurate information and accused me of things that were not true. They demanded that I sign the write-up as a condition of my employment. I said I would only sign the write-up after proof was provided for each and every accusation listed in the write-up. They could not provide proof, so I did not sign. They did not terminate my employment.

06/20/2013
I reported to work at my regularly scheduled time and treated my patients without incident. At the end of the workday, I was called into another meeting (meeting 2). Again, I was pressured to sign the write-up. I asked if they could provide evidence of their accusations. They could not. At that time, I submitted written rebuttals to the accusations listed in the write-up and meeting 1. I can provide my rebuttals to you, if you are interested in reviewing them. In meeting 2, our more talkative office manager, Alex, stated that I was written up because I was out of compliance with the employee manual. We then consulted the office manual to determine if any of the write-up items were addressed in the office manual. They were not. Subsequently, Alex revised the write-up to a "verbal counseling". I signed the "verbal counseling" form, but stated that they were holding me accountable to items that were neither written office policy or discussed with me in any other fashion. This "verbal counseling" was the first time I had ever heard of my "infractions". How can I comply with a policy that does not exist? Anyway, they said that they would provide training for me on appropriate office policy implementation. I agreed to this resolution. However, on the "Corrective Action Notice and Record", under the heading "Plan of Action/Expected Outcome and Date to Comply", Alex only wrote, "please comply immediately". Without a formal written plan of action or date to comply, I believe this leaves me exposed to another of their arbitrary actions toward me.

Since 06/19/2013, I have been under significant duress; I am not sleeping or eating well and have been experiencing shooting pain in my wrist, elbow, neck, in addition to very painful headaches. I am considering preparing notes from meeting 2 to place in my personnel file, although I'm not sure how valuable that would be.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

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

What question do you have regarding your situation?
Customer: replied 1 year ago.

1. In the event my employment is terminated, am I entitled to collect unemployment insurance?


 


2. I feel that I have been unfairly targeted by management for some reason. Can I make a harassment claim? If so, to whom would I file that claim?


 


3. My job is physically demanding. It sounds odd because I sit in a chair most of the day, but sitting in static positions for long periods of time is taxing on the lower back and repetitive motions with my right hand/arm due the nature of cleaning teeth becomes difficult as well. My chiropractor has told me that it is likely that I have musculo-skeletal issues due to my job and that not taking appropriate break periods only exacerbates the issue. Should I consider making a claim for disability insurance?


 


4. In general, what techniques can I use to protect my job, even though it is clear management is trying to jeopardize it?

Expert:  Joseph replied 1 year ago.
Hello Melissa,

Thank you for the questions.

My goal is to provide you with excellent service today.

1. You probably will be entitled to unemployment benefits, but I cannot answer this question definitively for you. In order to be eligible for unemployment benefits, you need to be terminated through no fault of your own.

There is a rebuttable presumption that you were terminated through no fault of your own, so your employer would need to prove that you were actually terminated due to misconduct or some other reason. Since your employer doesn't appear to have any evidence of your misconduct, it would be difficult for them to prove this, but it may come down to a he said/ she said situation if your employer decides to contest your application for unemployment benefits.

2.

It depends on why you believe you are being targeted. If you believe that it has anything to do with discrimination based on a protected characteristic (gender, sex, age, national origin, disability race, etc.) you can and should file a discrimination claim with the Department of Fair Employment and Housing, which you can do online here:

http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm

If it is harassment based on any other reason, unfortunately, it is not illegal, while it is extremely unethical and inhumane.

3. If your injury is work related, you would actually make a a workers' compensation claim rather than a claim for disability insurance. Disability insurance is only for injuries that are not related to work. (E.g., if your back pain came from hurting your back moving things, exercising, etc.)

4. Unfortunately, as an at-will employee (one without a contract or a member of a union) it is really impossible to prevent an employer from terminating you if that is what the employer wants to do.

This is due to 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."

Unless you can link their desire to terminate you to discrimination due to a protected characteristic or retaliation for your complaints about such discrimination or another protected activity, it is really impossible to prevent your employer (or management) from doing what they want to do.

I realize the above news isn't entirely favorable to your situation and I sincerely XXXXX XXXXX had better news to give you (as I believe such personal targeting should also be illegal, etc.), but I hope you appreciate a direct and honest answer as it would be unprofessional for me to provide you with anything less.

Since my goal is to provide you with the best service, please don't hesitate to ask any follow up questions.

If you don't have any, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 5123
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you so much for your responses. I have some follow up questions for you:


 


5. I realize each case is unique, but in your experience, which type of benefits are more stable or last longer, unemployment or workers compensation?


 


6. How would I go about filing a workers compensation claim?

Expert:  Joseph replied 1 year ago.
5. It entirely depends on the injury. If it's a permanent injury, then workers' compensation benefits would last longer and provide more money.

If it's not a permanent injury and/or the disability rating is very low then unemployment benefits would be more stable. Unemployment only lasts a year and a half or so. Also, the two are not mutually exclusive, since as long as you can still work (with restrictions) due to your injury, you can still receive unemployment benefits at the same time.

6. You need to inform your employer within 30 days of when you know about the injury. Yours is a little different since it's ongoing, so i would be fine for you to notify them now. Then you would request to be put in contact with your employer's workers compensation carrier so you can file a claim with them.
Customer: replied 1 year ago.

I understand. I appreciate your honesty. I do not believe I have a permanent injury. But, I do believe I have three distinct and legitimate claims; discrimination (there are two people of color in the office, me being one, and we have both been subjected to the same treatment by management); workers compensation due to my ongoing injury; and unemployment when they decide to terminate my employment, which I believe is a forgone conclusion. I'm trying to determine which one or combination thereof will give me the most flexibility and ability to maintain my standard of living. In your opinion, which is the optimal route to take?

Expert:  Joseph replied 1 year ago.
Hello Melissa,

You should proceed with all three claims against your employer, and neither of the claims exclude the others.

You can file a workers' compensation claim as soon as possible.

When you are terminated (assuming you are correct that it is a foregone conclusion), you should file a complaint with the Department of Fair Employment and Housing for discrimination on the basis of race and file for unemployment benefits at the same time.

The Department of Fair Employment and Housing will investigate your complaint on your behalf and either file suit on your behalf or issue you a right to sue letter so you can pursue your claim against your employer through a private attorney. Alternatively, you can waive your right to the investigation and proceed immediately to hiring an attorney and filing suit against your employer.

Customer: replied 1 year ago.

Joseph,


 


You have been extremely helpful. Thank you so much for your guidance and enjoy the rest of your weekend!


 


 

Expert:  Joseph replied 1 year ago.

Thank you, Melissa; very happy to help!

 

Please remember to rate my answers positively so I get credit for my work!

 

Have a great rest of the weekend yourself too!

Expert:  Joseph replied 1 year ago.
Hello Melissa,

Thank you for your positive rating of my service!

Please contact me on JustAnswer should you have any further legal issues.

You can contact me by placing ‘To Joseph’ at the beginning of your question and/or requesting me directly in the California Employment Law category.

Thanks again and best of luck!

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