California Employment Law
California Employment Law Questions Answered by Legal Experts
Hello and thank you for your question today. Are you online with me?
First let me say that I am terribly sorry to hear that you are being put in this situation. It is a shame when an employer decides to do something without legitimacy. Especially when that thing is quite frankly wrong. Unfortunately, New York is an at will employment state. This means that your employer is allowed to terminate your employment or change the conditions of your employment at any time for any reason that does not violate your civil rights or is in breach of contract. So, if you are a for cause employee, and they are trying to change your job duties, then this would be unlawful. Additionally, if you were a union employee or if you had an employment contract that strictly forbid this type of behavior, you would have a cause of action. Additionally, if you believe the real reason they are doing this is because they are discriminating against you because of a protected category, such as your age (over 40), gender, race, religion, genetic information, pregnancy, national origin, creed, or disability, then this would be deemed wrongful and you would have a cause of action. That being said, if you quit another job to come here, or if you incurred any other expenses then you would have a claim for what is known as promissory estoppel. You would claim that a promise was made, that you detrimentally relied on, that cost you money for which you would be able to recover. Concerning what you are doing, you are doing exactly what you should. If they terminate your employment under these circumstances you would be owed unemployment benefits. If you were to quit, you would need to show that you were "constructively terminated." This means that anyone in your situation would have done the same. You mention that the direction has put your health in danger as a result of this. Depending on the exact facts, this may be enough to constitute constructive termination.
It also may be enough for a completely different set of claims. If he has struck you in any way, then you would have a claim for battery. If this has caused you severe emotional distress, then you would have a claim for IIED (intentional infliction of emotional distress). In either of these scenarios, you should consider contacting an employment or personal injury attorney in your area.
If you decide to hire an attorney a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys willing to take your case prior to selecting the one you feel most comfortable with.
Additionally, if the harassment can be tied to any of the protected categories I mentioned above then you would have a hostile work environment claim which you could make with the EEOC or DFEH.
Welcome to the chat
Does everything I have said above make sense?
yes I am online
thanks for the prompt reply
im just reading the answer
Please take your time.
Are you still with me?
thank you so much for the answer
I have few clarifications
1. my Director with all respect to his sex is gay... I have understand he doesn't like me as a woman
we don't have union
and in my company everyone is a mafia and do each other a favor
my understanding is they don't want to increase my pay nor change my position
so they want me to work for more and less pay.
I can got to Eeoc but he could really hate me because one or all above discrimination reasons
but they might ask for prove, what do I need to do in that case ?
It depends on the reason that you give for discrimination. So, an easy form of proof is if they make some kind of derogatory against your gender because you are a woman, or because of your race.
An indirect form of proof would be if you are the only woman here and all of the woman get treated unfairly
i.e this type of thing happens regularly to women but not to men.
2. they can't terminate me ...that's why they keep asking me to either do all the jobs or resign :)
No one can force you to resign. That is entirely up to you. If you are afraid for your safety then it could open up additional claims against them, or if it is documented and you try to go to management to resolve the issue and have it in writing then you would be able to show constructive termination.
but you would want to have at least 3 complaints sent via email or certified letter (return receipt requested)
that's what I told them... they mentioned that have been few complains about my performance and I said: why didn't you bring it up earlier or why there is nothing in writing .
my Director for some reason wants me out and I'm not giving him the pleasure . he is nice with all the guys around.
I work in a fashion industry where with all respect are gay... i love them and I fully support them but seems he doesn't like me.
he has been lying and making up stories to VP and HR and since I knew what a dirty person he is and doesn't have dignity, I have been recording all the conversations
he snapped at me many times and he was fingering in my face and he has been denying all. he even told me there have been complains from our marketing department and when I spoke to each individually ( recorded the conversation) they never complained
I know recording conversation is not legal ... what do you recommend me to do in this case ?
Are there other women in your department (that he manages)?
And actually, New York is a One Party Consent State. Thus, you are allowed to tape any conversation that one party consents (i.e. you)
yes there are
so you mean: I'm allowed to record their conversation while I'm involved in the conversation , right ?
so in this case I have a lot to prove ,
that he is trying to jeopardizes my credibility , so they wont be able to sue me, right ?
Well, proving that he is discriminating against you because of a protected category can be difficult. Proving that he retaliated against you because of a complaint, however, is much easier. So, as I see it you have two options. This first is to make a formal complaint to HR where you state "Formal complaint of gender discrimination" and detail why you think you are being discriminated against because of a protected category. If you make a complaint to HR based on a protected category, then you would be protected. As for recording, yes, as long as you are involved in the conversation
WHy do you think they would be able to sue you?
i was told by one of my colleagues that we are not allowed to record the conversation so I guess since you are the lawyer and I'm one of the parties in the conversation i even have a better case to prove
Here is a brief overview of the laws concerning recording conversations:
However, there could be something which states that you could be fired for recording conversations.
But it is only illegal if no one who is part of the conversation tapes it
It could also be an invasion of privacy if you were to tape your employees.
But that would require that they had a reasonable expectation of privacy
Does that make sense?
yes it does make sense
So, to finish what I was saying above, if you make a formal complaint to HR based on the protected category and he harasses you as a result (or just harasses you in general) then you would have a claim for retaliation.
but we didn't discuss the privacy or confidentiality of this matter
So privacy takes place if an employer decides to tape its employees without their knowledge in a location where they have an expectation of privacy, i.e. a restroom
it would not apply to a fellow employee
"a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties."
so if a person is talking to you, they have no expectation of privacy that you would not tell someone else what they told you.
yes it does :)
So have I fully answered your question today? Please do not hesitate to ask any follow up questions you may have on anything I have said.
another thing is I've been so stressed at work that i got badly sick and i was off work for 3 weeks
so I'm thinking of seeing a therapist
as I can't focus not only at work but also in my personal life ...what do you suggest
Was you being sick as a result of his treatment?
I was sick for few days and didn't make to work, then you called me to his office and he said that it's not a valid reason to not show up at work.
then since I was pushed to go to work. I got badly sick at work for few day, vomiting and fainting and still he said it's not reason to not show up
so I really pushed myself and one day I fainted at work and they called the ambulance and I was admitted in hospital for 2 days.
So legally, you would have no job protection for being out for 3 weeks because you do not qualify for FMLA leave until one year of working there. However, if his treatment of you caused you to suffer "severe" emotional distress then you could definitely claim IIED. Seeing a therapist would be the first step towards this type of claim.
Which it sounds like it did since you had to literally work until you dropped.
so my situation got worse and worse and i didn't make it to work for 3 weeks as they couldn't figure out what was wrong with me. i was in a bad sever abdominal pain and many more symptoms
That is usually an onset of stress.
Given these facts, you may want to consider pursuing an IIED claim against this individual.
You should consider going to www.Martindale.com and searching for a "personal injury" attorney.
If you go to the search bar you can type in "personal injury new york" then on the left side you can narrow down that search to the city in which you live.
you are star
thank you so much
Not a problem. I am glad that I could get you pointed in the right direction.
And I am terribly sorry to hear that you have had to go through all of this.
thank you ....I believe in Karma and I'm sure they can't harm me
That is definitely a good philosophy. Have I fully answered your question today?
yes, you have....thank you so much and have a great weekend
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