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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
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Experience:  Employment/Labor Law Litigation
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I was jumped by my supv in a meeting yesterday. She announced

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I was jumped by my supv in a meeting yesterday. She announced my issues in front of my co workers and a contractor. She threatened our careers with the company by saying she would not give a recommendation for anyone that didn't get along with her. After the meeting she called me back into the conference room for a one on one meeting. She yelled at me and pointed her finger at me and I tried to leave several times and told her I didn't want to be talked to like this and I was told she would talk to me any way she wanted to. She also was trying to put words in my mouth and said she was writing me up for being disrespectful to her during the meeting. I have never been involved in any thing like this with any job I have worked at. I don't know what my rights are and can someone please help advise me? I am so embarrassed...
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines.

Do you have a contract of employment stating that you can only be terminated for cause?

Do you feel that this harassment was directed at you based on your race, religion, gender, age, disability or FMLA use?

When you say that you tried to leave, but couldn't, what do you actually mean there? Where you physically restrained by her from leaving the room?
Customer: replied 1 year ago.

I'm not sure of the contract - it's an "at will" work place.


 


I do feel it could be because of FMLA. My daughter was sick 2 weeks ago, on a Sunday, and I had her at the hospital. At first they thought it was spinal meningitis but after all of the tests it came back at mono. I called Monday am to let her know my daughter was sick and she had an attitude and said this was an occurrence. I called in for a FMLA and was told that while this was pending she couldn't give it and if she tried to let them know. On Wednesday am when I called to let her know that I wouldn't be in, she told me she needed all paperwork showing what the illness was and the hospital forms to show she was at the hospital - everything pertaining to it. I took the 2 hospital forms in and the page from the FMLA that the dr had filled out stating what the illness was and how many days it would last. I was told this was against my rights by someone that worked there, but did it anyway so I wouldn't get in trouble. She then brought the papers back to me and said it didn't cover 2 days and I needed a note from the dr office. I called the dr and picked it up that afternoon and took it to her. She again said it wasn't enough - it was for my daughter and not me. I explained there wasn't going to be one for me - my daughter was the one that was sick. I have an FMLA and need to have surgery. This is the "issues" she was talking about in the meeting.


 


When I tried to leave I was verbally told I couldn't. She closed the door when I entered I told her I didn't feel comfortable about it because I was upset from the previous meeting. I asked her not to yell or point her finger at me but it seemed to make matters worse.

Customer: replied 1 year ago.

Let me also state that she is black. Other black co workers can take time off and re-arrange their schedules with no problem. The Friday I came back a black male co worker called in to say that he wasn't coming in because I member of his church was under the weather and he was taking the day off to visit them. No occurrence was threatened.

Expert:  Allen M., Esq. replied 1 year ago.
Ok. Without a contract of employment, you are "at will" as you've already noted.

That means that you're in a very unprotected position. In fact, most employees are and don't really know it. This matters because it determines what an employer can legally get away with, in terms of termination and even harassment within the workplace.

So, in an "at will" employment situation, for the yelling, finger pointing and general harassment to actually be illegal, it must be tied to one of the illegal factors that I mentioned before. The Supreme Court specifically stated that our employment laws are not meant to be a civility code, but rather, are only meant to address illegal discrimination.

So, you have to be willing to commit to this statement that you believe you are being harassed because of your FMLA use. Now, the closeness in time (temporal proximity) is good for making that argument. It also seems that the manager has been focusing on your medical absence (which can be take for yourself or your child under the FMLA). So those facts work well in your favor.

Most importantly though is the rule against retaliation. The reason that is important is that it is how you're going to get protection during this meeting on Monday. During that meeting, you need to come right out and say "I believe that this harassment was based on my use of FMLA. This manager has questioned my use of it, is harassing me about using it, is trying to tell me that using it for my child doesn't count, and all of this harassing behavior happened immediately after I used it."

Once you make that statement, you are legally protected by the FMLA law against retaliation.

You can also specifically mention the issue of race, and how you are being treated more harshly than others in the workplace of a different race from your own.

It is vital to clearly make these statements to HR, because that is the only way to come under the anti-retaliation protections of the FMLA and the Title VII laws against race discrimination.

Then you just have to see how HR responds. They'll either help or they won't, but the reason to say this to HR is to take away any defensive claim that they can make that you never gave them the chance to respond.

If HR doesn't assist, your next stop is the Department of Labor for the FMLA issue and the EEOC for the race issue, either one or both.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 16078
Experience: Employment/Labor Law Litigation
Allen M., Esq. and 4 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you so much for the advice - it helps alot!

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Allen M., Esq.
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