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barristerinky
barristerinky, Attorney
Category: California Employment Law
Satisfied Customers: 37010
Experience:  Attorney for over 12 years. MBA degree earned as well.
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I was just terminated on an excessive absence loophole as

Customer Question

I was just terminated on an excessive absence loophole as retaliation for filing a hostile work environment claim. I had HR telling me that we could rectify the situation and that I would not be termed and then my manager had someone send me a message to meet him in HR. I was then walked out after surrendering my badges and access cards. I have an exemplary work record with 10 years of employment. Now because of the absence termination I am not going to be eligible for unemployment benefits correct?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: California, and it is an Indian ran Casino.
JA: Is the employment agreement "at will," union, full time or part time?
Customer: I am a lead so I am not management nor am I union covered either.
JA: Anything else you want the lawyer to know before I connect you?
Customer: HR told me this very morning when I talked with the manager this morning that they would not fire me.
JA: Of course. The best way to reach them is by emailing***@******.***
Customer: So that is your suggestion to email this web site?
Submitted: 11 days ago.
Category: California Employment Law
Expert:  barristerinky replied 11 days ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.

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Did you actually violate the company policy on absences? or did they make that up?

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Had you been made aware of the policy when you began working there?

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If you had many absences, did you apply for FMLA leave if it was for medical issues with you or your family?

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thanks

Barrister

Customer: replied 11 days ago.
Sir, I did suffer an issue with my back over the July 1st weekend, I tried to contact my chiropractor but because of the following holiday the office was closed. When I contacted his office on Wednesday July 5th they informed me that he was no longer doing adjustments due to a health issue. I then went to a clinic and they saw me and prescribed meds and povided me with what they said would cover my absence plus the Friday coming up. I turned the note in and HR did not say there was a problem. I only found out what was going on because I looked in our system to see that the points were taken off with the doctors note. That is when I found out that they were that my department was trying to terminate me for absences. I contacted HR and they said that they were willing to work with me to get me on Intermittent FMLA and I sent my daughter to pick up my records. I was again assured by HR management that I would NOT be terminated. At aproximately 2:30 I was called to security and given my termination paperwork by my manager.
Customer: replied 11 days ago.
I have talked to the HR manager from my residence since my dismissal today and she was completely unaware that any of this had occurred.
Customer: replied 11 days ago.
As I stated in my original statement, this is all retaliation by my departments management because of the hostile work environment and wage dispute complaint I have filed. HR had been working with me on this as well.
Expert:  barristerinky replied 11 days ago.

Ok, unfortunately if you hadn't actually filed for FMLA leave, then any absences could go towards violating the absence policy and would give them legal grounds to terminate for misconduct. If that is how they classified it, then you are correct that it would disqualify you for unemployment benefits..

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I understand it was unfair, and apparently there was not good communication about what they were going to do, but if you did actually violate the company absence policy, even if it was unintentional and for good reason, they can legally terminate.

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You can file an EEOC complaint and allege unlawful discrimination if you feel this was in retaliation for your filing the complaints, but if the company can prove that you violated the policy, they didnt' violate the law. That is why is it critical to absolutely toe the line once a dispute comes up with an employer so as to make sure you don't give them any legitimate reason to fire you.

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I am very sorry that the news isn't better.

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Barrister

Customer: replied 11 days ago.
Even though the policy states that you must provide a doctors note if you are absent for more than 3 consecutive days or you are ineligible to return to work. I did provide said note as I was out for 5 days. I did not violate the terms stated. I worked for 2 days after returning to work and was not informed that there was an issue.
Thank you
Expert:  barristerinky replied 11 days ago.

If you followed their policy and provided the appropriate documentation, and they still fired you, then it looks more like unlawful retaliation if they didn't follow their own established HR policy. That is why you might want to follow up with the EEOC and file a formal complaint to get them to investigate to see if they did violate their own policy.

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thanks

Barrister

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