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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5131
Experience:  Extensive experience representing employees and management
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I was terminated because I did what I was told to do by a superior

Customer Question

I was terminated because I did what I was told to do by a superior to relay a message to a recruiter and the recruiter told the applicant and the Company was sued for discrimination. The only reason I relayed the message to the recruiter was that the superior knew this person. I stated to the recruiter that the superior told me to relay this message. The superior was not terminated by the Company. I've worked for the Company for 71/2 years and never had any write-ups nor did I ever act unfavorable in the Company's interest.
I feel that I was the fall guy due to the superiors instruction. I was also denied unemployment due to misconduct. This has been the culture of the Company and have told the owner numerous times that this direction has caused obstacles in filling the open positions. How can I defend myself to the EDD appeals board for unemployment.
Thank you!
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.

 

My goal is to provide you with excellent service today.

 

What is the alleged misconduct that you were terminated for? Were you told the reason for your termination at the time?

 

Also, can you tell me what the message was that you were told to (and did) relay? Did the superior deny that he or she said it?

 

 

Customer: replied 1 year ago.

1. Failed to follow a simple rule (by EDD)


2. I was told at the their lawyers advise since the Company was being sued they were to terminate me. I asked them to put in writing why I was terminated and was told they didn't have to.


3. I informed the VP of Finance that the recruiter she told me to use were not sending us qualified applicants and that she was sending us African American applicants. The owner had a bad experience in the past because someone played the black ticket (that was what I was told since I've been there and preferred not to hire them). That is why I relayed that to her since I was pressured to fill that position by her and the owner. I feared losing my job. When we received the law suit in the mail from the labor board, I told her "Remember when you told me to tell the recruiter not to just send us African American applicants? She said, yes....well we are being sued. Then she said, I don't know what to tell you...you will have to take it up with Randy and Gregg." I was floored. So I don't know if she denied it to the owner. But their attorney did ask to see the Employee Handbook Acknowledgment Form we both signed.

Expert:  Joseph replied 1 year ago.
Hello Pat,

The alleged reason for your termination is failure to follow a reasonable employer rule.

In order for you to be found to have failed to follow this rule it must have been known by you (or reasonably should have been known by you) and your employer must prove violation.

If you were terminated for conveying a message from your superior to a recruiter, your employer would be hard pressed to prove that you were terminated for failing to follow a reasonable employer rule, despite the content of the message you conveyed (which is unfortunately definitely discriminatory). This is due to the fact that you would have had a reasonable belief that you were not violating any rule, as you were trying to act in accord with your superior's statement to you to relay the message to the recruiter.

It definitely seems that your superior must be denying that she ever said this, as she definitely would be terminated if they were holding her responsible for making this apparently racist comment. (It's fine to tell a recruiter to only send qualified applicants, but to tell them not to send African American applicants, is pretty clear cut discrimination).

Your unemployment appeals hearing then, unfortunately, comes down to a he said, she said situation, whether the administrative judge believes your superior and employer or you.

In addition to your own testimony that you were only conveying the message and that you are a fall guy, you would want to try to get statements from your co-workers that back up your flawless work performance (no write ups or warnings in seven 1/2 years).

It would definitely be helpful for co-workers to attest to the fact that you would not have made this statement yourself either. It would be extremely helpful if you have co-workers who are people of color to give statements that you are not racist and would not have made such comments, and must have been relaying a message.

Since my goal is to provide you with excellent service today, please don't hesitate to ask any follow up questions that you have.

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!
Customer: replied 1 year ago.

What would be my best defense in my appeal on July 2nd? No co-worker would ever step forward fearing losing their job. I have had African American people working for me at other companies...I hired them.


Example: If a truck driver took a load that was over the required lbs (according to the law) but the company operated that way that driver would not be liable..Correct? I feel that I worked in a culture that was discriminatory and just did what I was told trusting that superior that she knew this recruiter well enough to direct me to doing that...Is there no justice?


 

Expert:  Joseph replied 1 year ago.
If you have former African American employees or colleagues it would be best to reach out to them to see if they will write (or at least sign) affidavits that you are not racist. You also may want to reach out to the recruiter him or herself to see if they will give a statement that you only stated that your superior requested no African American candidates and you did not.

The fact alone that you did hire African American employees in the past would also be extremely helpful in demonstrating that you were only conveying this statement and were not the author of it.

Unfortunately, there is an issue with your analogy, since a truck driver is still personally liable (under the law; e.g., he can be ticketed and fined) for ensuring that his truck is operated within the law and not overweight, but nevertheless, I entirely get your point. It is extremely unfair for you to be penalized for operating within a discriminatory culture and doing what you needed to do to survive within it.

As with any instance of corporate wrongdoing, instead of admitting to this culture, they will try to find a fall guy to take the blame in order to state that the company or employer as a whole is not liable. You were definitely unfairly and wrongfully targeted for relaying the message of your superior.

However, as with the truck driver analogy, I feel its important to note that California law empowers you to resist the culture if you choose to do so. For instance, if you refused to relay the message and were terminated as a result, you would have a cause of action for retaliation and wrongful termination in violation of public policy (as well as a potential hostile work environment claim)--just as a truck driver would have a wrongful termination claim if he refused to operate an overweight truck and was retaliated or terminated as a result.

That said, I would definitely suggest that you try to avoid ever making any similar statements in employment again (even if you're just relaying a message), as it's easy for the employer to just turn around and blame the messenger as a fall guy. The workplace keeps on getting more sensitive, so you definitely don't want to put yourself in the position of being a fall guy ever again.
Joseph, Lawyer
Satisfied Customers: 5131
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Hello Pat,

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.

When you receive your Customer Satisfaction Survey from JustAnswer, please rate me highly (9-10)! High customer satisfaction scores ensure that I will continue to provide you and other customers with excellent service and they are greatly appreciated!

Thanks again and best of luck!

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