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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11060
Experience:  Significant experience in all areas of employment law.
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I was self- employed until a year ago when I went to work for

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I was self- employed until a year ago when I went to work for a non profit agency. (CA state) I am to be interviewed for a state job this week. I just read that I am to sign a form so that can request my employee file. I have done a lot of work without pay. (Most all employees in this agency find themselves having to do this as well. I recently let my supervisor know that this was an issue. In retaliation and defensiveness she flipped the situation on me and threatened to write me up for it.

A few weeks later in a job review she elected to give me a score of 1 for time management. I am to see 3 clients a day. I averaged 3.33 clients a day for the year. How do I manage this situation? Do I request that this supervisor modifies the performance evaluation. How do you recommend I present this to her for correction? If she will not modify it, how do I present this potentially in a job interview? I have always heard you should not complain about a present or previous employer.

I thought I should just be straight forward and say this job evaluation makes me uncomfortable given I am now exploring the possibility of future employment. Do you have recommendations as to how I am to proceed with this?

All of our work is documented in computers including times and hours logged as we use the computers. Unless this company falsifies their records somehow, there would be substantial evidence of unpaid work hours on behalf of most of the employees.
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 3 years ago.
Good evening and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

I am very sorry to hear that you are not being paid for all of your work and for the difficulty this recent evaluation is causing you.

It is illegal for employers to retaliate in any manner against employees for asserting their rights under the Labor Code, including the most fundamental of those rights which is the right to be paid for all work performed. Since you see more than the required number of patients every day and yet you were scored poorly in the category of "time manage," it is clear there is no legitimate basis for the negative mark and, thus, you have a strong argument that the negative review constitutes unlawful retaliation.

If I were in this circumtance, I would write my current employer a letter indicating that I believe the negative review amounted to unlawful retaliation for complaining about the non-payment of wages. In my letter, I would also state that Labor Code 1198.5 mandates that employers maintain a comprehensive personnel file which includes all "records that the employer maintains relating to the employee's performance or to any grievance concerning the employee." I would state that my letter pertains to a "grievance" (my pay and retaliation for raising the issue) and as such must be included in my personnel file. Finally, I would indicate that since the negative review amounts to unlawful retaliation that it be retracted.

At best, XXXXX XXXXX retracts the negative review and at worst, the review remains but the State will also see your rebuttal letter, which explains what you believe to be the basis for the review, and so allows you to provide some sort of explanation for it but in an indirect way so that you don't appear to be "badmouthing" your employer to the State. Ordinarily speaking, this would be the best course of action under the circumstances.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
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