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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39010
Experience:  Retired (mostly)
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Im having some troubles at my employer, a well known package

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I'm having some troubles at my employer, a well known package shipping company in California. I'm a part-time, non-union supervisor.

I was required to take an online work methods test, I passed with a 98%. My immediate supervisor came in and told me this was unacceptable and that I need to be at 100%. However, the test itself says 95% or higher is considered passing. The next day my supervisor told me that I failed to complete the test on time, and I needed to write myself up. I submitted a write up to him stating that: I passed the test on time with a 98% and I believe I have not done anything wrong. My supervisor said the write up was unacceptable and that I need to submit a new one to him stating something to the effect of, "I need to make commitments and if I do not complete my tasks on time, there will be consequences." The HR Manager was present with my supervisor and the area manager. HR said that I needed to indeed write myself and this is how things are done at the company.

There are previous incidents that have been building up to right now. They are similar in nature regarding to taking company mandated tests. Lately they have been working me really hard. Generally there is only one supervisor assigned to one area. However they have had me covering two areas to cover for other supervisors that are on vacation - sometimes for 3 weeks at a time. Because of this, I don't have time and have not been given any time on the clock to study or prepare for these tests.

I would just like to know if they can force me to do these "write ups" about myself and include specific verbiage? Can I refuse? If not, how can I write these to protect myself? Much of the time they will refuse my write ups unless I use specific language. What other things can I do to protect myself? I feel like they are being unusually harsh and unfair with me. I feel like they are making me build a case against myself. Thank you.

I'm sorry that no one has answered your question earlier. This is the first I've seen of it, as I was out of the office most of yesterday.

California law recognize that an employer which does not follow its own disciplinary processes and/or policy rules, can be held liable for lost wages in the event that it terminates an employee. In addition, a policy action which on its face (as you describe with the test requirements being enforced differently than the test actually requires) violates the employment contract, ,and similarly would entitled an employee to lost wages.

However, reinstatement of an employee to his or her job position is not part of the employee's rights, except in cases where the employer terminates for violation of an important public policy (e.g., jury duty), or the employer has subjected the employee to unlawful discrimination (race, color, nationality, ancestry, religion, sex, sexual orientation, equal pay between sexes, pregnancy, age or disability).

An employer cannot force an employee to do anything, under the threat of physical force or fear of force or legal sanction, because to do so creates an involuntary servitude in violation of the U.S. Constitution, 13th Amendment. However, an employer can simply terminate or demote an employee if he/she refuses to follow instruction, so while an employee has the choice to refuse to comply, the response to that choice can result in the loss of employment -- because Cal. Civil Code 2922 permits an employee the absolute authority to terminate any employee "at will" (exceptions as noted in the previous paragraph).

Your facts suggest that unless you comply, the employer will terminate you. On the other hand, if you do comply, you will effectively be admitting to unsatisfactory performance and that also would provide the employer with a rationale to terminate you. This further suggests that the employer intends to terminate you anyway, and it is simply looking to protect itself from legal liability by having you admit that you have done something wrong, before it completes the termination process.

I cannot tell you what to do -- however, I know what I would do, and it wouldn't be to do what the employer is demanding, because I see no upside in compliance. Instead, I would be dusting off my resume and seeking new employment before I lose my current employment.

Note: Think carefully about whether or not there may be an unlawful discrimination component here. In particular, if you are 40 years of age or older, this could be age discrimination -- i.e., the employer wants to unload you because you cost too much and a younger employee would solve that problem.

If you think that there is some validity to this position, then you can file a complaint with the California Department of Fair Employment and Housing (DFEH). Or, you can hire a private employment rights lawyer and sue. For a referral, see this link.

Hope this helps.

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Note: I made a small mistake in my previous post. Cal. Civil Code 2922, should read Cal. Labor Code 2922.

Please do not respond to this Info Request. The system will interpret your response as asking a new question and then start sending you requests for further payment.

This is just the only way I can correct the error, given system constraints.

Best wishes.