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Ask socrateaser Your Own Question
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39018
Experience:  Retired (mostly)
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I just received a poor reveiw that incuded: Due to attendence

Customer Question

I just received a poor reveiw that incuded:

Due to attendence and time management concerns, we are requiring Brad to obtain and actively use a elontronic time card to ensure he has documented evidence of meeting a 40 hour week.
I have been out a lot on Doctors orders due blood, kidney, and thyroid disorders. It is well documented.
My last reveiw was excellent and I got a bonus. Now I have a new boss, who said "my salary is my bonus". Despite getting a accomodation from our Regulatory Agency and becoming certified with CALISO.
It looks like they want me out and are using my illness to do it. Should I fil with the EEOC?
Submitted: 6 years ago.
Category: California Employment Law
Expert:  socrateaser replied 6 years ago.

A disability discrimination claim requires, (1) that you have a disability that affects a major life function and which will persist for a long period of time, (2) that the employer takes an adverse employment action against you based upon your disability, and (3) that you have notified the employer, either expressly or impliedly, that you require "reasonable accommodations to perform the essential functions of the job."

The burden then shifts to the employer to show that it will suffer an "undue hardship" by providing you with reasonable accommodations, or that you cannot perform the essential functions of the job despite your having been provided reasonable accommodations.

Your allegations state that you are being required to use a time card as a means of ensuring your attendance at work, consistent with your employment agreement (whatever that is, e.g., 40 hours per week, 9am-6pm, 5 days per week, one hour meal period, etc.).

The time card requirement is not necessarily an adverse employment action, i.e., your wages and benefits are not diminished -- the only requirement is that you electronically check in and out of work.

Were you to request reasonable accommodations, it is not clear that relieving you of the obligation of using a time card would have any positive impact on your ability to mitigate your disability and perform the essential functions of your job.

Thus, at this point, at least based upon the facts you provide, I do not see a disability discrimination claim, because the prima facie elements are not met.

That said, I'm not the EEOC (or its analog in California: DFEH), so if you believe that there are other facts which will satisfy the required elements of a disability claim, then by all means, file a charge and see what happens. Retaliation is unlawful, so your employer cannot lawfully punish you for complaining to the government.

Note: I am unusually deterministic in analyzing legal issues. Many lawyers and investigators would simply conclude for or against you with little consideration of the actual elements of the claim. But, I would rather give you an objective analysis in the manner of a judge, than tell you either yes or no -- because, ultimately, the decision to file a charge of discrimination must be yours. You now have a pretty good understanding of how the law works, which hopefully will make your decision more informed.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 6 years ago.

I also was going report to the FDA about the conditions here where we manufacture dietary supplements. Can they fire me for that? I do work in the Regualtory Dept

Expert:  socrateaser replied 6 years ago.
That's a much bigger deal. If you report a violation of federal law to the applicable government agency, then you are immunized from employment termination, at least to the extent that you can trace the termination to your report (which is generally pretty easy to accomplish, because employers usually "knee-jerk" and fire the employee before realizing that they have just shot themselves in the figurative foot).

So, if you believe that there is a serious violation of FDA regulations, then that can get you a totally different type of protection than can be accomplished through the EEOC/DFEH.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 6 years ago.

Well, I reported them to the FDA. The FDA/OCI group got back to me and I gave them my contact information.

Then my employment was terminated today, so they got wind of it.

I have a severence package to buy me off.

Any suggestions?



Expert:  socrateaser replied 6 years ago.
Lawyer up. For an employment rights attorney referral, see this link.