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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38248
Experience:  Retired (mostly)
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I am an Salary employee who was asked to clock in with a

Customer Question

I am an Salary employee who was asked to clock in with a group email sent out to the entire company. I clocked in perfectly until they changed companies. I was not able to clock in and I alerted HR May 25th, Payroll 06/20/2016 and two other times. I documented my hours on a time sheet and put them with the others. I recently was out in the morning on a corporate deal and an hour before l was supposed to be at work I alerted my boss and direct team. When I was told the Regional Corporate Sales guy was in my club I sent him to a text telling him I would stop at our new corporate to get something we needed to approve the deals we had. When I returned to the club the Regional Sales Guy said I was not clocking in properly and then he left for the day. I soon after received a Final Warning Write Up. Pervious to this write up the same guy sent me a write up a few months earlier for not be prepared for his meeting. Keep in mind that I am new to the company and I have never been shown the process nor did I know what to expect. He did not even look at my work he just said written warning being unprepared. He wrote me 3 times to sign it via Echo Sign.Both write-ups where given to me via email no personal meeting. Now with this Final Warning writeup he is harassing me to sign. He wrote me 4 times and even told me “stop what your doing print and sign write up” I am not comfortable signing because I feel I followed company policy and did not receive the right direction. Can you please advise me on what to do? I do not want to lose my job over this. In 20 years in the industry I was not written up once.
Submitted: 6 months ago.
Category: California Employment Law
Expert:  socrateaser replied 6 months ago.

Hello,

I am a member of the State Bar of California, the U.S. District Court for the Central District of California (LA/OC Metro, and surrounding counties), and the California and National Associations of Realtors. Please permit me to assist.

First, the fundamental rule of California employment law is that an employer can terminate an employee "at will:" at any time, for any reason, or for no reason at all. Cal. Labor Code Section 2922. Because of this, the employer can simply say, "you're fired," whether or not you sign the warning and whether or not you are clocking in correctly.

There are, of course, many exceptions to the rule stated in Section 2922 (discrimination based on race, color, nationality, religion, sex, age and disability; jury duty, complaint to a government agency about employer violations of law, etc.). However, I don't see any of the exceptions as applies to your stated facts.

Concerning whether or not your being required to clock in, given your status as a salary-exempt employee, you may have a claim for treatment as an hourly employee, which may permit you to obtain overtime hours. In order to evaluate this, I would need to know all of the facts about your employment, and I would need to review all of your personnel and payroll records -- something that cannot happen in this forum. And, in fact, if you could prove this, then you could complain to the Labor Commissioner, which would immunize you from retaliation and prevent your employment termination. Cal. Labor Code 1198.5.

As to whether or not it's a good idea to sign the written warning, you can sign, and write above your signature that you dispute the claim that you are in willful or negligent violation of any employer rule (which can be used to protect yourself from being denied unemployment insurance benefits, if you are terminated). And, you can also refuse to sign, which will make it impossible for your employer to prove that you were warned of your violation prior to termination (which may also protect you from losing your right to unemployment insurance benefits). On balance, it's probably better to sign, and write in your dispute on the form.

But, unless you actually file a wage claim with the Labor Commissioner, or provide a written complaint to your employer's HR department or to a member of executive management before you are terminated from employment, then you cannot use retaliation as grounds to protect yourself, because the employer will not have retaliated.

And, if you choose to write to executive management, then you will need to prove that your complaint was made, because, in my experience, employee complaints that could operate as grounds for legal action against an employer have a tendency to vanish mysteriously, and employers frequently deny ever receiving any such written complaint.

That said, if you are interested in having a lawyer assist you in protecting your rights, I will send you a premium services offer, and we can take this matter offline.

If not, then I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 6 months ago.
How much is it to take the matter offline and give you the information so I can make the right decision to protect myself.
Customer: replied 6 months ago.
What's the cost in the premium service offer?
Expert:  socrateaser replied 6 months ago.

Sorry, I got involved with a "real world" client. I will send the offer. Please note, website policy (and California law) prohibits me from negotiating price or terms for legal services forum.

Thanks again for using Justanswer!

Expert:  socrateaser replied 6 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

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