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Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1845
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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My partner is a sales agent in a phone store. He asked his supervisor to grab a bottle of

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My partner is a sales agent in a phone store. He asked his supervisor to grab a bottle of water in his car (1min away) as he was dis-hydrated. It was refused because there were 3 customers in line. Given that the business is always booming, so 3 customers is actually a low number, and there were other associates working, my partner told his supervisor he was getting his water. At his return, his supervisor and his manager wanted to sanction him, which he refused and left the store. He called HR the same day, to report this incident and others, implicating his manager's way of managing his employees, abusing of corrective actions and the threat of it. During the inquiry, his manager wrote that he had left the store creating havoc, but there is visual witnesses, along with cameras, proving the contrary. After the inquiry, the district manager is proposing to change my partner to another store (he is #1 in sales) if he signs a write-up for insubordination. Is there any cause for a claim?
Submitted: 1 year ago.
Category: 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 :

Welcome to the chat

Employment-LawExpert :

First, let me say that I am terribly sorry to hear that you are in this situation. It is a shame when an employer makes a decision without legitimacy, especially when that decision is quite frankly wrong. However, that does not necessarily mean that the decision is unlawful. Unfortunately, I must tell you that in order to be protected under the laws of harassment, the harassment must be as a result of his age (over 40), gender, race, religion, genetic information, pregnancy, national origin, creed, or disability.

Employment-LawExpert :

Courts have regularly held that other types of harassment, while unfair, are not actionable under the law.

Employment-LawExpert :

However, you mention a couple of things which could lead to legal action.

Employment-LawExpert :

You state that your partner is constantly accepting to stay longer after his shift is over. His work is not of the type that would warrant him exempt status, thus, he must be paid for all hours actually worked. If he is not paid for the additional time he works, he would have an unpaid wage claim with the department of labor.

Employment-LawExpert :

Additionally, if the real reason he is being treated this was is as a result of discrimination based on a protected category, then he could absolutely file a claim with the EEOC.

Employment-LawExpert :

Otherwise, unless he is part of a union, or has an employment contract which states that he can only be fired for cause, they are not only legally allowed to write him up for this, but they are allowed to terminate him as well

Employment-LawExpert :

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair of you to provide you with anything less.


 

Employment-LawExpert :

Does all of this make sense?

Customer:

Hi,

Customer:

Hi

Employment-LawExpert :

Hello

Customer:

Hi, I am still trying to find a way to read your answer, which is appearing as a line and a half in a small box and I can't seem to find the way to enlarge it. Give me a few more minutes, please.

Employment-LawExpert :

Not a problem. If you are still having trouble, please tell me and I will switch us to a Q & A setting which will be easier to read. Unfortunately, it will take me a little longer to respond to your questions as the website only allows me to answer questions in queue as they are asked.

Customer:

Ok, I've managed to read it through copy and paste.

Customer:

You say they have the right to even terminate him for this incident. If they go to that extend (because I know he will refuse to sign this write-up), isn't there any action we can start to contest the legitimacy of his firing? On the ground that he was dishydrated, so it was like refusing to someone something they need to stay healthy, so they don't pass out. Is that too far fetched? Yes he disobeyed, but on reason of his health.

Customer:

He is paid for his extra hours and he is not part of an Union and I'm sure he doesn't has a work contract. So that leaves only an "unfair" firing (if it ends up there) to fight against.

Employment-LawExpert :

Unfortunately, in a situation like this, the laws would only protect him if he had some kind of a disability which required him to drink. Under other normal circumstances,. had he passed out, or suffered any medical condition as a result, the company would have been required to pay for any medical expenses he accrued as a result of their actions. This, however, does not mean that he cannot do anything about it in the future, just that he would have no recourse given the facts you have presented. Under OSHA, an employer is required to provide clean and sanitary water to employees at all times for personal use. Thus, they would have been in violation of OSHA regulations. Had he then made a report to OSHA his job would have been protected from such a write-up

Employment-LawExpert :

OSHA would have then fined the company for failing to let him get water when needed. I realize that this is unfair, but unfortunately, this is the way works in this particular situation.

Employment-LawExpert :

I meant to type this is the way the law works in this particular situation.

Employment-LawExpert :

You can contact them here:

Employment-LawExpert :

https://www.osha.gov/oshdir/la.html

Employment-LawExpert :

Does that make sense?

Customer:

Yes, it makes sense, thank you. So your advice, as a lawyer with experience in this domain, is that there is nothing much to do for this past incident. But if he still working with this company, he can contact the OSHA, start the process about the lack of water and then see if he gets refused water again.

Employment-LawExpert :

Exactly. Then, if any adverse employment action occurs as a result of his complaint to OSHA, then he would want to get an attorney involved for retaliation.


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 :

If he decides to do it himself, he can do so here:

Employment-LawExpert :

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=13269

Employment-LawExpert :

Or by going through the same process as in making the original complaint with OSHA

Employment-LawExpert :

He would then be owed back pay, front pay, emotional damages, possible punitive damages, and possible reinstatement

Customer:

While I have you here, so does that means that every time you feel the situation is starting to get bad at work, you need to first file a complain somewhere (in this case to the OSHA, but there must be plenty other instances), that way you are protected against corrective actions that could be linked to your complain? It's a protection like signing up with an Union?

Employment-LawExpert :

Well Unions actually tend to give far more protections than normal at will employment. This is because they have a collective bargaining agreement which allows, and disallows certain things. For example, many unions would have prevented this write up from being allowed.

Employment-LawExpert :

At will employment, however, gives employers most of the rights.

Employment-LawExpert :

So, for example, if you were being sexually harassed at work. A union may give you an immediate remedy. Absent a union, you must first make a complaint to management, and then second file a claim with the EEOC.

Employment-LawExpert :

But if you were to just quit as a result of the harassment you would likely not be able to sue unless the harassment was extremely egregious in nature.

Employment-LawExpert :

Does that make sense?

Employment-LawExpert :

Retaliation based on a protected category is a separate cause of action. This basically states that you engaged in a legal activity, such as making a claim to OSHA, filing a workers comp claim, filing a claim with the EEOC, and were retaliated against as a result.

Employment-LawExpert :

This way you do not have to prove that this is the actual reason you were being discriminated against, but rather that you were not treated this way prior to engaging in in a legally protected activity, but are being treated this way after.

Customer:

In this particular case of the water, there could be 2 actions in the future, after he has filed a complain with OSHA. If he is still refused water while none is provided, the OSHA could fine the company. If he is sanctioned for having complain to the OSHA, he is in a protected category so he can't be sanctioned and has ground for action. Sorry for repeating things but I want to make sure I have this right.

Employment-LawExpert :

That is correct. Except, OSHA may choose to fine them already for this action. Unfortunately, however, this would not protect him from his writeup

Customer:

But that is something to use for negotiation. So far I've always resolved my own employment issues (unpaid holidays, etc) with the use of arguments, I'm hoping to achieve the same here. That's why I'm looking for points to use in a talk with the HR department. So they can work something out in everybody's best interest.

Employment-LawExpert :

Got it.

Employment-LawExpert :

Just be careful, because as I said before, as an at will employee, at the moment, prior to an official complaint, he can be fired without recourse

Employment-LawExpert :

Have I fully answered your question today?

Customer:

Thank you for your advice, unfortunately, he won't sign that write-up, I know this for sure. So we'll see what happens next.

Customer:

Yes, you have answered my question, thank you for your time and the extra explanations.

Employment-LawExpert :

I am glad I could get you pointed in the right direction. 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, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.


 

Employment-LawExpert :

If you ever need to ask for me again, please feel free to do so here:

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

Thank you and have a great day.

Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1845
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 5 other Employment Law Specialists are ready to help you

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Brandon, Esq.
Brandon, Esq.
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948 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.