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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7145
Experience:  Significant experience in all areas of employment law.
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Patrick- Fired last week for something my boss told me to

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Patrick- Fired last week for something my boss told me to do but HR says is against company policy to the extend of theft, bribery & kickbacks. They haven't given me anything in writing, and now im not qualified for unemp. The accusations are false as i was told to do it and everyone else that is in my line of work does do it because there is no other way around it. Even yesterday the girl filling in for me did it as well. am i not entitled to get it in writing what im fired for? with such accusations, I have to file unemp and appeal it when my company denies it? isnt it wrongful termination to let it continue but fire me? seems like discrimination? Defammation of character when they claim i was a thief? What can I do?
Submitted: 12 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 12 months ago.
Good morning and thank you for requesting me to assist you. Please permit me to address each of your questions as follows:

Am i not entitled to get it in writing what im fired for?

Unforutnately, no. As an at will employee your employer can fire you for virtually any reason (include an unfair one) or no reason at all. No advance notice or explanation need be provided.

That said, if you apply for unemployment benefits, your former employer will need to explain to the EDD why your termination constituted "misconduct" if they want to appeal your claim. This will essentially require them to provide the explanation you are seeking.

with such accusations, I have to file unemp and appeal it when my company denies it?

Actually, the Unemployment Insurance Code starts with a presumption of eligibility for benefits. It is not up to your employer whether to deny your claim but rather up to the EDD, the CA agency charged with administrating benefits.

The EDD makes an initial determination based on a phone interview of you and your employer (separately) and if you disagree with that decision, you file what's called a Level I Appeal. Instructions on how to do that will be included with your initial determination you receive in the mail.

isnt it wrongful termination to let it continue but fire me?

"Wrongful" in the general non-legal sense, absolutely. However, "wrongful" giving rise to a legal action for damages, unfortunately no for the reasons stated above regarding "at will" employment.

seems like discrimination?

Discrimination as defined by the law is adverse employment action occurring on the basis of a legally protected trait. In CA, legally protected traits are limited to the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation.

If you can prove that termination under these circumstances was a PRETENSE to get your rid of for one of these unlawful reasons (i.e., they fabricated this excuse to terminate you because they do not like people who practice your religion), that would constitute unlawful discrimination.

Defammation of character when they claim i was a thief? What can I do?

Unfortunately, this does not qualify as defamation because they have a reasonable basis for their allegations (which you understandably agree with, but it's not as though they are making up lies, they are just choosing to characterize something you did as theft--there is a big difference). Also, these statements about your theft are not being made to third parties (the EDD doesn't count, as statements made in the context of a benefits hearing are privileged). In short, no defamation claim arises from these facts.

Your recourse is to apply for unemployment benefits and appeal if you are denied. Fortunately, in the course of the UI hearing (assuming there is one and you are not just immediately granted benefits with no appeal), you will learn more about your employer's justification for it's decision.

I am truly sorry that I don't have more favorable information to provide you, but you are here for accurate information about the law and it would be a tremendous disservice if I were to mislead you for the sake of providing good news.

Please do not hesitate to contact me with followup question if you have any. I am not done assisting you until you are absolutely satisfied with my service.
Customer: replied 12 months ago.

I must say you are very thorough with my answer and I do appreciate that ...not in any way the answer I wanted to hear but your honesty and expertise is why Im here.


 


So basically, let me get this right, I don't have a leg to stand on.


 


When someone calls them for a reference, what are the allowed to say?

Expert:  Patrick, Esq. replied 12 months ago.
Kerry,

Thank you for your compliment, I am just sorry that I cannot provide more favorable news.

In terms of a legal action for wrongful termination, unless you can prove that the theft allegation was a pretense for unlawful discrimination of some sort (race, religion, gender, etc.), you regrettably would not have a "leg to stand on," to use your words. I am sorry.

With regard to your claim for unemployment benefits, you absolutely have a "leg to stand on." This is because disqualification requires a showing of willful misconduct, and here since you were acting at the direction of your boss and other employees have not been terminated for the same sort of behavior, it would be nearly impossible to argue that this was a willful effort to steal from your company. Though it may require you to appeal, I think your facts here are rather strong. Of course, nothing is a guarantee.

As far as what your former employer is permitted to say if asked for a reference, they can make any statement which they believe to be true. If they want to say that you were fired for improper use of discounts, they would be free to do so.

The only way you could limit their right to speak freely about your termination would be if you signed a mutual non-disparagement agreement, but the problem is that your employer will have no incentive to agree to such restriction since they likely are not worried about what you'll say about them. (You can of course propose this, though).

Again, please feel free to let me know if you have any further concerns. If I have answered your questions, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.

Patrick, Esq., Lawyer
Satisfied Customers: 7145
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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