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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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Ive been a Sr. Network Engineer at a Saramento based Radiology

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I've been a Sr. Network Engineer at a Saramento based Radiology company for the past 7+ years. I was hired as a TOC (Temporary On Call) employee. I was told that was for the first year while they worked on getting me hired as a FTE. During that time I was asked several times over the 7 years what it would take for me to come on full time. I was sent emails that stated offers were in the works several times at the beginning, then it was all verbal statements but they kept me interested by asking from time to time if I wanted to still come onboard and I was always interested in talking, but it never happened. My manager recently when out on FMLA extended leave and when he went out, the company began a slow process of removing me from my position. I was just asked a few weeks ago once again if I planned on coming on board and even sat down with my CIO to go over my desires. I didn't hear back til this morning when I was released. My question is, since I was working there for almost 8 years as a Sr Network Engineer, I had to use their computers, punch in and out for timestamping, attend meetings and more, with no PTO, No Paid holidays, no sick leave pay and no vacation buildup or 401k beneifts (9-11% annual dump) which was a big part of keep me there. I feel like they kept a carrot dangling in front of til they were done with me and now I've lost almost 8 years that I could have been earning these benefits at another company. Am I entitled to there benifits since they offered it to me in writing but we never completed it over a period of years. If so, do I file a claim at the Labor Board?

Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.

Thank you very much for your question. I am so sorry to hear that you were let go and that the possibility of full time employment and benefits was dangled in front of you to keep you from pursuing other opportunities.

Unfortunately, an employee under these circumstances will ordinarily have no recourse. This is because employment in the state of Calfornia is "at will" absent an agreement to the contrary. At will employment can be terminated at any time for any reason, so promises of a future raise or promotion are unenforceable, since your employer at all times retains the legal right to terminate you, change your hours, or reduce your pay (e.g., you could have been boosted to full time and then fired the next day, so your employer's refusal to promote you cannot constitute a "damage").

Only if you were promised benefits on the basis of hours you actually worked but did not receive would you have a viable claim. For example, if you were actually promised 20 days of PTO for the year 2012 but your employer is now trying to rescind that promise, you would have a claim because that PTO has already been earned. Prospective promises for PTO at some point in the future, even if that point in time is clear and unequivocal (i.e. "next month") are unenforceable because the terms of employment are always subject to change.

If all of the promises made you to were purely prospective, there is simply no way to enforce them. It is quite a shame that employers are able to "dangle the carrot" in this way, but there is no law that specifically prohibits this sort of conduct, despite it being extremely unfair.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

Please do not hesitate to 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.

Very best wishes to you.
Customer: replied 4 years ago.

Thanks for the advice. When I took a job similar to this one before I worked this last one, I spoke to another attorney about the law and being a contractor vs. employee. That one was a contractor position, so would I be correct in saying that the job title or classification is key here? That person stated there are some 22 conditions in the California Labor Law that an employor must meet to consider a person a NONE employee. Is the fact that they're calling me an employee and covering the taxes, but nothing else, the way they can work me as an FTE but no provide benefits?

Thanks again.

Expert:  Patrick, Esq. replied 4 years ago.
Thank you very much for your reply. I'm not entirely sure I understand what you are asking. I think you are asking if the distinction between employee and contractor is relevant to determining whether or not your employer must provide benefits.

If that is indeed what you are asking, the answer is that the distinction is irrelevant for this purpose. Employers have no legal obligation to provide benefits such as PTO, sick leave, 401k matching etc. to employees or contractors. While an employer may have a practice of providing such benefits to full time employees, being full time does not automatically by law entitle an employee to those benefits, and in fact an employer would be free to deny those benefits to just ONE full time employee while providing the benefits to all others (unelss there was a discriminatory motive such as race, religion, etc. for the denial).

The taxes which an employer must withhold for employees are payroll taxes and have nothing to do with the benefits you are describing. Payroll taxes cover such things as unemployment insurance disability insurance, etc. These are government funded programs to which employees, but not contractors, have access.

It is almost always better to be classified as an employee than a contractor (contractors are entitled to almost none of the protections under the labor code and need not even be paid minimum wage), but that distinction does not affect the answer to your question, I'm afraid.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 4 years ago.

I will have no problem giving you a great review, you've provided great detail in this so far and I thank you for that, I just want to make certain I don't have a legitimate grievance her before I give up. It just seems so wrong how it went down, I have to believe something that wrong has to be protected by the laws. So maybe it's not a Labor Law issue, maybe more contract (intent) or wrongful dismissal? I know you know the law, I'm not questioning that, I'm just thinking that since I talked with my manager and his manager several times over the years about becoming an FTE and then again just recently before my release today, it just seems as though they kept me thinking I'd get the benefits they knew I wanted and they used to keep me working there thinking I'd get them someday, until I told them they needed to either hire me or I'd have to look elsewhere for a job. 3 months later I get fired. Seems wrong, am I just hoping there's justice where there isn't?

Expert:  Patrick, Esq. replied 4 years ago.

Thank you very much for your reply and kind words.

The only potential argument I can think of would be premised on the implied covenant of good faith and fair dealing that is imputed on all employment contracts in the state of California. This implied covenant provides that parties to an employment relationship have a duty not to do anything that prevents the other party from receiving the benefits of their agreement. You can read more about it here:

The problem with asserting this argument is that, as I initially noted above, your employer's allusion to the possibility of full time employment does not constitute a "contract" and so it is hard to argue that your employer deliberately obstructed you from obtaining a benefit to which you were "entitled."

I'm not sure exactly what you are hoping the end result here to be, but a reaonable course of action here may be to retain a local attorney and have them write a letter indicating that your employer's breach of the covenant of good faith entitles you to damage in the form of lost wages and/or lost opportunity.

Again, I hope that you find this information helpful and I wish you the very best moving forward.
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