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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1830
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I need advice from an attorney who specializes in Liable and

Resolved Question:

I need advice from an attorney who specializes in Liable and Slander. I was just informed that my very recent former employer will be entering an official document into my employee file that contains slanderous information. What can I do about this? I can prove that what they are saying is false. In fact, the act they say I committed could never have been committed in the first place. It would have been physically impossible for me to have committed this act. What rights do I have to prohibit them from entering any kind of document in my file that contains accusations that I created a hostile and threatening work environment when there is absolutely no way that anyone could come to this conclusion given the facts of the matter. Most importantly this will affect my ability to collect unemployment. Please help?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Defamation, (libel if written, and slander if spoken) is any communication to a third party which harms your reputation. To be actionable, the statement must be a false "statement of fact." So, if they wrote that you are a terrible employee, while false, this would be a statement of opinion, and not fact, and thus would not be actionable. However, if they wrote that you stole, or were absent 5 times when you were not or did not then this would be considered defamation. California law requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Labor Code Section 1198.5 So, if the employer is placing something in your file that is a false statement of fact, then you would be able to bring an action against the employer, and the individual who told them of this. You will first want to get a written copy of your employment record. Your employer is required by law to give it to you. Then, you would want to bring a defamation suit against the individual and the company for the false statement of fact.

Employment-LawExpert :

You may want to consider getting an attorney involved in this matter. 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.

Employment-LawExpert :

Even the threat of a lawsuit in this situation will likely be enough to have them clear any statements of fact out of your employment records.

Employment-LawExpert :

Unemployment, however, is a separate matter. When you claim unemployment, they will likely claim that you were fired for "misconduct" You will argue why this is false. You are allowed to bring witnesses, witness statements, and any other proof as to why no one could come to this conclusion given the facts of this matter.

Employment-LawExpert :

The way unemployment works, is that by default you are granted unemployment if you make an argument that you lost your job through no fault of your own. Then, you will be denied unemployment if your employer decides to fight it. At this point an appeal will occur. It is at this stage that you must prove that you could not have been fired for misconduct.

Employment-LawExpert :

If you have any questions on how to do this, please do not hesitate to ask.

Employment-LawExpert :

Otherwise, please do not forget to provide a positive rating and have a wonderful rest of your day.

Customer: replied 1 year ago.
Yes, I am. Sorry I got up from my computer for a few minutes.
Expert:  Brandon, Esq. replied 1 year ago.
Not a problem. Unfortunately the website has switched us to a Q & A setting. If you have any additional questions, please do not hesitate to ask.
Customer: replied 1 year ago.
I have a copy of this document. It is my notice of termination letter. They say that I locked an employee in my office thereby creating a threatening and hostile work environment. It was physically impossible for me to lock this employee, much less anyone, inside my office because the little door-knob locking mechanism was located on the inside. I was performing a corrective action session with this employee because I discovered that she had violated several company policies. I discovered that she had possession of several customer payments (live checks) dating all of the way back to October of last year. She had them hidden in one of her drawers. These customers were never credited for these payments not to mention the fact that these checks were never deposited to to our bank account.

So, I had every right to "write her up" for these very serious violations of company policy. We were not even in my office for 5 minutes when she her behavior became very aggressive and she would not listen to what I trying to tell her. I was speaking calmly however she was not. Then the branch manager interrupted our session and an hour later, I was informed that I was being suspended while they conducted further investigation into the matter.

Last Friday, I found out that I was being terminated because my final paycheck was deposited to my account. They refused to let me know the reason for my termination until I demanded that they send me an official Notice of Termination letter. This is when I found out that they were accusing me of locking this employee in my office.
Expert:  Brandon, Esq. replied 1 year ago.

So, if you can get a picture of the door mechanism showing that it cannot be locked from the outside then you should be able to easily win your unemployment claim. If you are a for cause employee, or if you are part of a union, then you may also have a breach of contract claim. Finally, because this is part of your employment file, you "may" have a claim for defamation. The reason for this is that if you are an at will employee then they can fire you for any reason that is not in violation of your civil rights or in breach of contract. Thus, you will have to be denied a job based on this information in order to create damages. However, if all you want is for this to be taken off of your record, you can definitely threaten a lawsuit and see if they will remove it.

 

However, you mention "hostile work environment." Are you sure this employee is not complaining of gender discrimination? i.e. that you locked the door while you were both inside with the intention to do something untoward? Because if this is the case, you may be able to already have damages, and should absolutely speak to an attorney in your area immediately.

Customer: replied 1 year ago.
I don't know how gender discrimination could be claimed in this case because we are both female. I suspect that the branch manager is doing this on purpose solely for the purpose of preventing the EDD from making withdrawals from the company's unemployment fund "bank" as a result of my filing for UI benefits. I would think that acts such as this would be viewed as not only an attempt to defraud the government but it could also be viewed as an attempt to cause me pain and suffering. Am I correct in my thinking?
Expert:  Brandon, Esq. replied 1 year ago.
You are correct in that this is an attempt to defraud the government and that the EDD sees this type of behavior all of the time. This is why you have a very good chance of receiving unemployment given the facts you have presented. Unfortunately, to be able to have a legal claim against them and thus be able to recover pain and suffering, you would need to 1) prove that the statement is false (which it sounds like you can do) and 2) show that you have suffered humiliation, embarrassment, and mental distress caused by the defamatory statement. This may be harder to prove given the nature of the statement, but it is not impossible. The pain and suffering in this instance would not be from firing you, but from having other people know what was said. If you break it down to just the words of the statement, and you were to tell a friend what would they think. What dollar amount would they place on this. If you think that it is enough to bring a lawsuit, then you absolutely should. The question here, is what would a "reasonable person" think (the legal standard used by the courts.

That being said, there is always an attorney willing to take a case such as this. If you want, you can definitely go on Martindale, or other lawyer referral service. You may have to call a few dozen attorneys, but you will find one willing to take your case.
Brandon, Esq., Lawyer
Satisfied Customers: 1830
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you very much for your advice and help regarding my situation. I have initiated contact with an Attorney in San Francisco and they have already responded asking me to call them tomorrow. Thank you again.

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