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John
John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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I hurt myself at work by falling out of a chair. The next

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I hurt myself at work by falling out of a chair. The next day my employer gave me a disciplinary action that said I wasn't doing my job right, I was treating people with disrespect, and that I was violating policy. Because I hurt myself I never went back as I had to have surgery. Does this stay in my file even though I was never able to defend myself against these accusations?
Submitted: 9 months ago.
Category: Employment Law
Expert:  John replied 9 months ago.
Hi, thanks for submitting your question today. My name is XXXXX XXXXX X’m happy to assist you with your question today.

Generally this is going to stay in your file, even though you were not able to defend yourself in any type of hearing. Arizona law does not give the employee a right to alter or object to written personnel records in the file in any event.

A bigger concern in your case may be that this could potentially be a workers compensation retaliation case. In order to succeed on a claim for retaliation under Arizona’s Employment Protection Act, ARS 23-1501(3)c (iii), a Plaintiff must show: (1) that he/she engaged in a protected activity (e.g., filed a workers’ compensation claim or was injured on the job), (2) that he/she suffered an adverse employment action, and (3) that there is a causal link between the two. If Plaintiff provides sufficient evidence to make out a claim of retaliation, then the burden shifts to Defendant to articulate some legitimate, non-retaliatory reasons for its actions. If Defendant sets forth such a reason, then Plaintiff must show that Defendant's proffered reason is merely a pretext for the underlying retaliatory motive.

Now, whether you want, or whether it would even be worth your time, to file a lawsuit for retaliation is probably questionable. Having only been issued a bad performance rating is not usually something people sue over because the time and money to file such a suit. But if it ever comes the day that some more serious employment action (e.g., termination) occurs because of this poor review or some other action, you may want to consider filing such a lawsuit.
Customer: replied 9 months ago.


Ok.. I can live with that... but now that I'm looking for another job can you suggest anything that I can say to my new employer that will soften what is said in that negative record? or can I get into trouble telling them that there was an injury that may have resulted in this record being created if I'm not going to sue?

Expert:  John replied 9 months ago.
Hi, Joan,

First off you would not expose yourself to legal liability if you stated hat it is your opinion that the particular performance rating was because of your being hurt at work.

Second, it is difficult to know what if anything you should reveal in subsequent interviews even if it is legal to reveal the same. Generally, I advise clients that they need to put their best foot forward in a subsequent interview and not mention negative things that have occurred at the prior position. Accentuate the many positive reviews I'm sure you had before this one. And, if they press you to give them a reason why you are leaving state something like - recently changes have occurred that made you uncomfortable with your future role with the employer and/or you thought it best to seek out new opportunities because of the same.
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 2657
Experience: Exclusively practice labor and employment law.
John and 4 other Employment Law Specialists are ready to help you
Customer: replied 9 months ago.


Wow! You're amazing... thank you! That's exactly what I needed.

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