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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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I have a friend who is a store manager. Recently she was called

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I have a friend who is a store manager. Recently she was called in by HR about her hourly assistant working off the clock. It was reported to HR by the loss prevention representative. LP and HR did not investigate the matter properly because time records show that the associate was paid; in fact over paid. My friend had no knowledge that her assistant was off the clock because she was at home. She did text the assistant a question at 2 a.m., but was not expecting an answer until the next morning because she thought the assistant was home asleep, but that was not the case. LP asked the assistant for the text message which the assistant provided out of fear for losing her job because she was working off the clock. The company wants to punish the store manager by termination and not the associate. The store manager has informed HR that she did not have knowledge of anyone working off the clock and does not condone the practice because it is against California labor laws. HR is calling her back into the office for further questioning. What is her recourse? As far as the text message, did the company have the right to ask for the message without her consent since it was made through personal cell phone? The text message does not tell the associate to work off the clock.
Good evening and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

Unfortunately, the laws in this area strongly favor the employer. Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

Termination, if that is the penalty your friend's employer wishes to impose, would be entirely legal under the circumstances. An overreaction, certainly, but not illegal in any sense. Likewise, there is nothing illegal about your friend's employer requesting production of the text message. For one, it was reqested and not involuntarily seized (i.e., they didn't grab her phone from her and search through her messages), so any privacy expectation with regard to the message was waived. Secondly, even if some privacy right were violated, which is not the case, she would have only nominal "emotional distress" damages, since she would have almost certainly been terminated even if the text message was never produced. Job loss is not a derivative damage.

In short, this is a circumstance in which your friend has no good legal options. Her best recourse is an interpersonal approach, explaining to the company the reasons for her actions and her value as an employee with the company. Terminating workers is never a company's preferred method of dealing with behavior they don't approve of. It's expensive to search for, hire, and train new employees. Your friend can also file for unemployment benefits, which will adversely affect her employer's UI premiums.

Though employers have no legal obligation to be fair, they typically are for the above stated reasons. It is in their interest to give employees the benefit of the doubt. If your friend has any hope at retaining her job, it is by appealing to her employer's rationality. In all legal respects, however, she has no leg to stand on, I'm afraid to say.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
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