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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20228
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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human resource violations. Write ups that are false. I work

Resolved Question:

human resource violations. Write ups that are false. I work as an esthetician and am a commission employee. My coworker/mentor has done nothing but harass, put down, and lie to the owners about me for the full year than I've worked there. I have been to management several times and have it documented on both sides and they promise things will change and nothing has happened. I don't know what my rights are in a situation like this. They made me sign a write up under deres because if i didn't I was to write my letter of resignation right there.
Submitted: 6 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 6 years ago.

Can you tell me if your employer has a written policy that requires a certain number of write ups before they can terminate an employee or are you strictly an employee "at will?" Is the person is who making the statement about your performance management? When you say you have been harassed, is there something other than write ups going on and if so, what? Do you have any idea why you are the one being targeted? Are there other estheticians who are not being treated this way? If so, what makes you different?
Customer: replied 6 years ago.
I believe it's 3 write ups then they stop scheduling you. They don't fire people because they don't want to pay unemployment. That's why one of the owner's was demanding that I write a letter of resigination. The person making the disparaging comments about me is my equal, she has senority, but is my equal. Her and I started of on the wrong foot from the begining. There is not enough business for the 2 of us so she's felt that I'm taking money out of her pocket by being there. So she's done everything in her power to try to get rid of me. And as far as the harassment goes it's mainly name calling ie. you're worthless, stupid, idiot, useless. She also is head of the rumor mill and has told people that I'm toxic, that I'm on drugs (which is not true). I've been to management several times stating that I felt harassed and that this was a hostile work environment.
Expert:  Marsha411JD replied 6 years ago.
Hello again,

Thank you for the information, it was helpful. First though I want to clarify that "hostile work environment" is a legal term of art that only applies when the severe and pervasive acts are motivated by unlawful discrimination against a member or members of a protected class under employment discrimination laws. So, that means that unless you are in a protected class and that is what the motivation is for this versus a personality conflict and just plain unprofessionalism, then you don't have a harassment complaint that you could pursue in court or with the DFEH.

That leaves the issue of your continued employment and write ups. If the employer has a written policy or practice where they give people warnings prior to termination, then they must follow that policy. Of course, that doesn't mean that you can't be written up for things that you don't agree with or find truthful and then still find yourself out of a job. However, if you could show that the employer knew that the issues you were written up for was false, then you might very well have a wrongful termination claim, since they would have violated the covenant of good faith and fair dealing, which is required to be followed by employers in California. You would have to pursue that though with a private attorney.

If they did not have substantiation for their write ups, then you would also be found eligible for unemployment benefits should you lose your job, which hopefully won't happen. If I were you, I might start keeping a daily journal or log of your activities and any run-ins you have with this other person, just to have something to refer to in your own defense or should you need it in the future.

I, like the other Experts on this site, am here to assist customers like you. However, we do so in anticipation of being paid for our efforts, just like other professionals do, since this is our livelihood and not a hobby. To that end, I am more than happy to clarify my answer to you and answer any related follow up questions that you might have for the value that you have offered for the question. In return, I ask that you show good faith in compliance with the TOS by accepting my answer, whether the news is good or bad, so that I will be paid for my efforts.

Customer: replied 6 years ago.
What's the definition of protected class. Because she'll pull appointments off my books just because she's mad at me that day. I'll walk into work and before I have a change to put my things down I'm getting yelled at for god only knows what. I feel that I'm walking on egg shells at work. I've asked for a schedule change so that I could minimize my contact with her. The managements response was "we need to look for another esthetician". Another problem there is the owners are only there thursday-saturday. There is no management for the remainder of the week. I also told the owners that i was diagnosed with GAD and MDD and their treatment towards me since then has changed.
Expert:  Marsha411JD replied 6 years ago.
In California it is unlawful to discriminate on the basis of: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. Remember though that just because you are in a protected class does not mean that the treatment is based on that fact. So, although you could always file a complaint with the DFEH, they would have to find that the facts supported the conclusion that your membership in the class was the reason for the treatment.
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