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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19005
Experience:  Employment/Labor Law Litigation
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I was recently let go from my job as a waitress. First the

Customer Question

I was recently let go from my job as a waitress. First the reason I was given was that I was not working enough shifts. When I said I would work more shift the truth came out that the chef thought I was not representing his food well enough, did not know the menu and did not run enough food. The chef has been there for about 4 months and since he started if I asked a question about the food he looked at me as if I was stupid and answered the question as if I were stupid. So, I stopped asking him questions, but I did ask other servers questions. No one ever tested me on my menu knowledge. About a week ago, during a shift, the chef exploded on me about not running enough food. He belittled me and yelled at me so loud and so rudely that I later went into the bathroom to cry. That shift and the 2 shifts after that I worked I made sure to wait in line to run food and I ran more food than any other server. I also apologized to the chef and said I was sorry for not running more food and that I would be more proactive about doing so. He said he appreciated the apology and then I was fired. No one in management sat me down prior to the chef yelling at me and told me job performance was not up to par. The chef has yelled at multiple employees and there other employees still there that are intimated by him. Do I have any recourse?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Unfortunately, in this country, generalized harassment is not illegal in employment law. When the Supreme Court of the United States addressed the definition of the term "hostile work environment" that court made it clear that our employment laws are not meant to be a civility code. Harassment without the ingredient of discrimination is not illegal.

What that means in this situation is that unless you can allege that the actually basis for the hostility against you was based on your race, religion, gender, age, disability or recent medical leave use there would be no recourse available through external employment laws.

You'd then have to look to your employment agreement to determine if there is anything in that contract that was violated. Specifically, your contract would have to state that you could only be terminated for cause, so that you could argue against the validity of the cause given. Without a contract term like the one I mentioned, your employment is "at will" and can legally be terminated at any time, so the contract wouldn't be of any help either.

Customer: replied 1 year ago.
Is there any complaint I can make about the verbal abuse?
Expert:  Allen M., Esq. replied 1 year ago.

No, because verbal abuse is not illegal in employment law. It is treated in the exact same way as generalized harassment.

If you can point to a threat of physical violence, that becomes assault and is a tort claim that can be brought in a personal injury small claims case, but there is no other complaint that you can legally make concerning verbal abuse in the workplace.

Again, our employment laws are not meant to be a civility code and while such behavior is unprofessional and immature, it is not illegal without the threat of physical violence (and even then, it is not an employment law violation but a civil tort claim).

Customer: replied 1 year ago.
What about this?Under regulations from the federal Occupational Safety and Health Act, or OSHA, you as a business owner can be held liable for not providing an employee with a safe and healthy workplace. An employee faced with verbal abuse can fairly claim that the abuse interferes with her ability to go about her daily job duties. You can be held responsible for retaining the services of an employee who verbally abuses another employee.
Expert:  Allen M., Esq. replied 1 year ago.

You can certainly try that, but I have not recommended it because in my two decades in this profession I have not seen a single OSHA complaint in that category be successful.

I have only read about a few that have been successful, and in those cases the individual verbal abuse was so great that it amounted to intentional infliction of emotional distress, another tort claim. So, the elements have to be about the same. To have an idea of how outrageous the verbal abuse has to be, think along the lines of a doctor telling a mother that her child died when the child had not. Furthermore, there had to be physical manifestations of the emotional distress. By this, I mean expert testimony of a medical physical manifestation of the emotional distress from the verbal abuse. You noted that you cried, but made no mention of any medically recognized physical manifestations of emotional distress.

Finally, the OSHA complaint would not result in a lawsuit for you. It would just be between OSHA and the employer. OSHA might (and again, I've have never seen it happen personally) fine the employer, but it would not go to you and OSHA wouldn't be able to force the employer to give you your job back. There would be no wrongful termination claim stemming from it.

Customer: replied 1 year ago.
Wow! It really sucks that as a good employee I can be fired from a job just because someone in a management position is a dick.
I'm not looking for money, I would just like to make a complaint about the way I was treated. Is there any other recourse you could suggest? It's just wrong that my job was terminated with no basis and no proof. I knew the dishes and I improved my job performance of running food after I was yelled at...
Expert:  Allen M., Esq. replied 1 year ago.

You can make the OSHA complaint, just to have it on record, if that's what you're looking to do.

Other than that, just word of mouth about your experience.