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Hello and thank you for your question. My name is XXXXX XXXXX X am a practicing Employment Law attorney in CA. My goal here is to provide you with some legal insight into your situation, and give you general legal information in response to your question.

Firstly, I am very sorry to read that you are experiencing frustration and mistreatment in the workplace. No one deserves to be picked at when you are simply trying to do your job. You asked when you should involve the labor board if your boss is picking at you and HR has not taken any corrective action. You could make a complaint to the Labor Commissioner through the Division of Labor Standards Enforcement, however the the CA Department of Industrial Relations & DLSE may not be the ideal venue for your complaint. I do not know what type of job you have, so I will give you some catch all advice: if you have a union job, your first course of redress would be to your union representative. In that case, you would be subject to a collective bargaining agreement, which may contain written policies and procedures for handling conflicts with your boss. Similarly, if you are a government employee, or you are subject to the terms of an Employment Contract, you have 'for cause' employment, as opposed to 'At Will' employment. This means that your boss cannot terminate you simply because the two of you do not get along. In either case, you would still be able to make administrative complaints; there would just be preliminary hurdles to navigate through first.

With that said, you probably have standard at will employment in CA, meaning that you can be fired for any reason, or no reason, so long as it is not an unlawful reason. That may not be what you would like to hear, but it is important to put some context on the problem you are having at work. I understand that your boss is upsetting you by picking at you, but without more, a mean boss is a management issue, not a legal issue. Generally speaking, rude, obnoxious, argumentative, grumpy, and disrespectful bosses may be horrible for employee morale, but their conduct is not unlawful, per se, unless they are picking on you for a reason that is protected by state and federal laws. It pains me to advise that you can be let go, or subject to adverse employment action such as Demotion, at any time for conflict with a superior, or any conduct that may be characterized as Insubordination. I understand that you are frustrated because HR has sided with your boss, and it is allowed to do that if the issues you two are having are based on personality idiosyncrasies, and not unlawful mistreatment in violation of your civil rights.

You make a very important comment about being on leave because of workplace stress. I want to emphasize that your stress may or may not be legally actionable, depending on the reason your boss is picking at you. Are you being harassed or discriminated against because you are a member of a protected class? Is your boss treating you differently than similarly situated employees based on your race, gender, age, disability, etc? If your boss's picking on you amounts to disparate treatment discrimination, or harassment based on your protected class status, then you would have solid grounds for recovery pursuant to FEHA {Fair Employment and Housing Act-which is CA's pre-eminent employee protection law}. FEHA, administered through the Department of Fair Employment and Housing, affords even greater protections than federal law, as administered through the EEOC. On the other hand, if your boss is picking on you regarding Overtime, minimum wage and hourly pay issues or specific violations of CA labor code, such as an unwillingness to give you breaks mandated by state law, you would file your complaint with the DLSE discussed above. Basically, these are two distinct administrative bodies in CA that handle very different types of complaints.

It sounds to me like your boss is picking on you for personal reasons. The threshold question for potential employer liability given that HR is aware of the conduct and has apparently chosen to ratify it, is whether the mistreatment relates to a protected class discussed above. If you believe that you are being targeted for disparate mistreatment because of race, sex, age or disability, I urge you to contact a local employment law attorney to discuss your rights and the viability of your potential claim. In fact, your current leave for work related stress and anxiety could go a long way to proving the mistreatment by your boss, and subsequent ratification by managing agents. If you are collecting short term state disability, be sure to obtain a written statement from your treating physician indicating your condition and its cause, and keep it as evidence.

On a final note, if your facts are not sufficient to give rise to a claim of disparate treatment discrimination, or harassment based on protected class status, or Retaliation/whistle blower protections, all hope for recovery is not lost. If your boss's conduct in picking on you, even if based solely on personal incompatibility, is sufficiently outrageous to cause you to sustain emotional distress, anxiety disorders, and/or depression, you may file a workers' compensation claim. As a general rule, almost every type of psychological injury resulting from workplace stress, Abuse, or mistreatment will require a reputable workers comp attorney to prove that your injury occurred at the workplace.

I sure hope I have provided you with a thorough and understandable review of the various legal approaches to the facts you described. Being picked on by your boss is unpleasant at best, XXXXX XXXXX at worst if the disrespect is based on a class status protected by CA's FEHA. As you can see, you have several options depending on your employee status and conditions of employment. If you have a follow up question, please click reply to expert and I will respond to you. I ask that you kindly rate me positively, because that is the only way for me to receive credit for my work.

Best of luck to you in 2012 and beyond.

melissamesq