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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Hi - I live in Los Angeles, California and have been working

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Hi -

I live in Los Angeles, California and have been working for my employer for just over one year. I'm in sales and recently closed a project consisting of 200 medical clinics which will result in appx. $2.4M by 2014. This meets and/or exceeds my sales goals for both 2013 and 2014. However, my manager wrote me up the next day for not making my numbers in 2012. I have not sold the least within my office and to my knowledge, has not written anyone else up with a disciplinary action. Unfortunately for me, he has consistently given other salespeople purchase orders to close ($40K on average) in order to help "boost" their numbers. In addition, management has given the salesperson who is selling less than I am an entire STATE as a new territory to help "boost" her botXXXXX XXXXXne.

I have not received any of this support. I have also experienced management allowing an employee who was leaving the company, to give her accounts to whomever she chose, without overseeing the distribution of her accounts. Unfortunately, she chose to give 90% of her accounts to another salesperson who was hired at the same time I was and has benefitted from this extensively. (I think they had gone to happy hour together one evening and that is how the decision was made. Not kidding...LOL.)

Anyway, this has created an incredible uphill battle for me as well as a lot of stress. I've been watching all of this take place while I am told that I'm not doing a good enough job and it's just the "luck of the draw".

I recently started to have heart palpitations for the first time in my life and saw my doctor. I am currently looking for another position, but concerned about the state of the economy as I am tied to architecture, design, real estate and construction and was out of work for some time.

My manager has now escalated the disciplinary action to its second stage, "cc-ing" Human Resources as of this week. I believe that due to this stressful environment, it is causing me to become ill. I've seen a medical doctor for the flu for the past two weeks as I just couldn't get over the persistent bug and while ill and using my vacation days, continued to keep up with clients, emails and calls. However, none of this seems to matter as I've been asked by this manager to bring in a doctor's note. I don't think I've been asked to do this since the 6th grade! HAHA.

I'm currently updating my resume and speaking with a recruiter. I'd prefer to find another place of employment and as of this evening, I'm considering all of my options since I believe that this manager has been unprofessional. I believe that he just doesn't care for me for one reason or another, despite my current counterparts and clients contacting him to give me an excellent reference, stating he should hire more people like myself and that they enjoy working with me. I've had no complaints from co-workers, etc.

What would you do in my shoes and what should I be aware of?

Thank You,
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your unpleasant work situation and the unfair way that you have been treated in comparison to other employees.

The unfortunate reality is that the laws here and very employer friendly. There is no general requirement that employers be "fair" and it is not illegal to give other employees a leg up, or to unfairly discipline an employee unless the underlying basis for this disparity in treatment is your race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. If any of these "protected characteristics" are the basis for adverse employment action, a valid claim for discrimination would arise.

However, unfair management decisions based on anything else, while unprofessional and perhaps even morally wrong, are generally not illegal. Furthermore, mere suspicion of an improper motive is insufficient. As a plaintiff asserting such an allegation, you would bear the burden of proving discrimination by a preponderance o the evidence, so unless you have concrete proof that your race, gender, religion, or something else was the basis for adverse employment action against you, you would not prevail on your claim.

With regard to your absence from work, it is not illegal for an employer to request "reasonable medical verification" from an employee to certify that their absence was for medical reasons--however, an employer does not have any right to know the specific details of your condition unless you contend that you have a disability for which reasonable accommodations must be provided (this does not appear to be the case here). So, your employer's demand for a doctor's note, while understandably irritating, would not ordinarily be illegal.

Since the conduct you describe is not illegal, an employee in your circumstance has very limited options aside from sticking it out until you can find alternative employment. I do hope that you appreciate my candor in telling you this, though it may not be what you were hoping to hear, as to mislead you into thinking you had legal recourse would be a tremendous disservice to you in the longer run.

One final point is as follows. An employee who is fired for the sort of performance issues you described would not ordinarily be disqualified from receiving unemployment benefits, but it is very important that your employer be the "moving party" in terminating the employment relationship.

So, even if you have notice that you are going to be let go, be sure to work until your very last day and not preemptively quit if you wish to retain your eligibility. The Employment Development Department (the agency responsible for administering unemployment benefits in the State of California) has routinely held that where an employee quits before their last day, their forfeit their right to benefits on the theory that they "voluntary became unemployed" even though their termination was imminent.

Please let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
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