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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39028
Experience:  Retired (mostly)
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I am currently under investigations for suspicion of sending a derogatory email to a corpo

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I am currently under investigations for suspicion of sending a derogatory email to a corporate president. The email was sent via a fellow employees computer log on. I am told that this coworker walked away from his computer(shared device/common area) and since I was in the area at the time of the emailing, I am to be investigated for possible job action, up to and including termination. Since this has management interest, the investigator and HR will need a scapegoat. Their claim is purely circumstantial. I refuse to be an 'example'! Some advice would be appreciated-Thank you!
Submitted: 6 years ago via Nolo Press.
Category: California Employment Law
Expert:  socrateaser replied 6 years ago.
Okay, here's the deal:

1. HR works for the employer. It's sole mission is to ensure that the employer cannot possibly be held liable to any employee under any violation of law. Whenever you think that someone in HR is investigating in order to assist you in your employment, immediately dispose of that thought, because it is utterly incorrect. HR will investigate in order to mitigate damages from terminating your employment, because if the President wants a head to roll, he/she will get one, and HR will do whatever is necessary to protect the employer from the employee's attempts to recover damages.

2. Labor Code 2922 permits an employer to terminate an employee "at will" -- at any time, for any reason, or for no reason at all. Naturally, there are a load of exceptions to the rule, but the rule generally prevails unless the employer is holding a smoking gun while standing over a figurative dead body. The reason is simple: everyone is afraid to risk their job by chalenging the employer's power, and the result is that even when an employee is right, few if any coworkers will ever testify on the employee's behalf.

3. Given that background, I don't know what you've already said to HR, but if you say anything other than that you absolutely did not send any message, and that you're frankly outraged by the employer's investigating you as if you were being made a scapegoat -- then you will be made a scapegoat and you will be terminated. And, even if you are so unequivocal as to convince HR that you're telling the truth -- you may be terminated anyway, because, Labor Code 2922 permits the employer to do so, absent some proof of unlawful discrimination, or other public policy violation (which doesn't apply to your stated facts).

4. Mainly, HR is looking to find a way to credibly claim that you were insubordinate, because that means if you're terminated, you cannot get unemployment benefits, and that reduces the employer's unemployment benefit contributions. So, once again, if you want those benefits in the event you are terminated, you must be unequivocal that you did not do the dirty deed, and there isn't a shred of evidence that can possibly tie you to that email -- other than you happen to work in the machine's proximity.

5. One last thought: most people want to tell their story, because they feel that justice will be done if they tell the truth. History has proved incontravertably that the more a person discloses, the more evidence they give their opponent, and the opponent will try to connect the dots and make a case, even if there wasn't one. So, when in doubt, you have nothing to say about anything to anyone -- other than that you didn't do it, and you're insulted by the suggestion that you are under suspicion.

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.
I have a bad feeling about my situation, Should I sign any documents or waive my rights upon termination?
Expert:  socrateaser replied 6 years ago.
You have no obligation to sign anything. You can refuse any meeting, investigation, test, exit interview, or other interrogation. Correspondingly, the employer can simply fire you for refusing to cooperate.

I can't tell you what to do. It's your job, and you have to make the decisions. In similar circumstances my response has been that while I understand and respect HR's need to protect it's employer's interests, if HR wants me to cooperate in an investigation where the ultimate outcome will be adverse to my interests, then HR will have to compensate me at the rate of $100,000 per hour -- payable in advance. Otherwise, I'm here to do my job -- nothing more nor less -- and, my job does not include suffering investigations about me.

In other words, "no."

Obviously, I'm pretty adversarial. Which is why you have to make your own choices. I don't want you blaming me for your losing your job.

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!

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