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A coworker doesnt do his job correctly and always turn the

Customer Question
A coworker doesn't do his...
A coworker doesn't do his job correctly and always turn the shift to me a mess (restaurant manager). Last time this happened,I took pictures and report it to my boss and asked that my name would not be revealed. My boss did not only told him that I complained and that I took pictures, but she wrote it on a log book for every manager and employee to see.

Next day, the coworker was verbally abusive about it, he told me to go take more f**** pictures and almost attacked me (he is a male and I am a female).

At that point I reported the incident and how it was handled by my general manager to HR; many employees that witnessed the attack has witnessed in my favor. HR manager was very concerned and kept asking my boss's boss why did he has to write in the log book. She was not happy about it either

Few days later, HR manager called me to tell me that "in everyone' best interest", a decision was made to transfer me to another location which is way far from where I live. This would take effect in two weeks when I return back from my vacation

I expressed my disagreement with the decision, and I told them that I feel that I have been retaliated against because I reported violations and misconduct. I also requested for my concerns/disagreement to be escalated to HR high level management (it is a large corporation).

Does this kind of punishment/retaliation/transfer fall under OSHA or any other entity authority and can I file a complaint ?

What are my options to fight the abuse and the retaliation?
Submitted: 4 years ago.Category: Employment Law
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Answered in 15 minutes by:
9/29/2013
Employment Lawyer: Samuel II, Attorney at Law replied 4 years ago
Samuel II
Samuel II, Attorney at Law
Category: Employment Law
Satisfied Customers: 27,011
Experience: More than 20 years of experience practicing law.
Verified

Hello

My name is XXXXX XXXXX I look forward to discussing this and providing information for you in this regard.

It is unfortunate and I suggest an odd way to handle this matter - taking the blame on you.

I suggest that it would be a retribution violation if you had file a complaint with the EEOC for some sort of discrimination. However, you can still file now if you feel this is a result of discrimination being based on your age, race, religion, national origin or a disability

Otherwise, unfortunately, they have a right to transfer you from one location to the other


I hope that this information is helpful. If you need further information, please just send me a reply asking for clarification. After that, I hope you will enter a positive rating so that I will be credited for assisting you. Thanks again for using this service. Your business is appreciated

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Customer reply replied 4 years ago

really ? I am confuse

I thought the law protects employees from retaliation by employers for asserting protected rights. In fact a lawyer friend of a friend told me that this is an ADVERSE ACTION.

He emailed me that "a tangible, adverse actions may include a transfer to an undesirable location, a significant loss in responsibility or prestige, or placement on a an undesirable shift"

Employment Lawyer: Samuel II, Attorney at Law replied 4 years ago

Hello

That is not fully correct - unless you have alread filed a complaint with the EEOC then they cannot retaliate for that.


OR you can be moved or terminated as long as it is not based on discrimination.

Otherwise, you are an AT WILL employee and as such they can move you about or even fire you.


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Customer reply replied 4 years ago
Are you saying that laws don't protect employees from harassment and retaliation ?
Really ? So you need to read this :
http://www.nolo.com/legal-encyclopedia/workplace-retaliation-employee-rights-30217.html

I am not sure if you read my initial question and situation carefully
Employment Lawyer: Samuel II, Attorney at Law replied 4 years ago

Hello

I am going to opt out of this question - because as I said yes, if there is discrimination there is protection.

So please do not respond here any more until another professional contacts you and at this time you have not been charged anything.

Good luck


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Employment Lawyer: Legalease, Lawyer replied 4 years ago
Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16,385
Experience: 13 years experience in employment law, unions, contracts, workers comp law
Verified

Hello there.

-

I am another expert here at Just Answer and have been asked to step in to clarify the situation and answers for you. I read your factual situation thoroughly and the responses of my colleague, Samuel II thoroughly also -- and I think that there may have been a bit of the legal explanation to you lost in the actual answers given by my colleague. You see, I know exactly what he meant because I am also an attorney -- but you need and are entitled to a deeper explanation of your situation and the laws regarding what constitutes prohibited acts of employer retaliation and harassment of an employee. Yes, I also reviewed the article that you referenced and even the article is not exactly 100% clear on what constitutes retaliation and it does not explain well what types of employment related complaint situations are protected complaints from employees so that an employer cannot legally retaliate against the employee for making such complaints. You see, the botXXXXX XXXXXne here is not every incidence of an employee making a complaint to an employer (such as you did here) is protected by laws so that the employee is protected from retaliation by the employer.

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The ONLY type of complaint to an employer that is protected by law from adverse actions being taken against you is if that complaint to the employer states that either you or another employee (or a group of employees) is being discriminated against by the employer due to your race, gender, age (over 40), disability, religion or sexual orientation -- these protected classes/areas also includes situations where you complain that you are being subjected to sexual harassment in the workplace because your supervisor and/or other employees are or have created an atmosphere of a hostile work environment that is sexually motivated against you (such as a group of male employees hanging porn pictures and telling filthy jokes when you are the only female employee there) OR another example would be a hostile work environment based upon religion (such as other employees harassing someone because they have a different religion than everyone else in the place of employment) -- under such circumstances you can file a sexual harassment complaint with HR or a religious discrimination complaint with HR and the company cannot take any adverse employment action against you or they can be subjected to fines and other punishment from the state and federal government and they can be subjected to a lawsuit from you if they fail to investigate such matters and then there are retaliatory actions taken against you).

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From your description of what happened in your first posting, it does not seem to me that you complained to the employer regarding discrimination regarding your race, gender, age (over 40), disability, religion or sexual orientation that you are suffering or have suffered at the hands of a fellow employee or group of employees or from a supervisor in this case. You made a complaint about the poor and shoddy performance of another employee that you had to and have to keep cleaning up after and straightening out their mess. While the actions of your fellow employee are frustrating and it appears that from the reaction of the employer they are not inclined to do anything about him and/or his performance, which is a crappy position for the employer to take here (when you are doing them a favor in trying to keep their establishment running in tip top condition), there does not seem to be anything here that happened that rises to the level of discrimination against you due to your race, gender, age (over 40), sexual orientation. disability or your religion -- which, if there had been any such discrimination against you (or any such sexually charged or religiously derogatory hostile work environment) ANY complaint that you made to the employer would have been protected and you would have been protected from retaliation by the employer if the employer took an adverse employment action against you. I absolutely agree with you that the employer DID take an adverse employment action against you and retaliated against you for making/filing this complaint and for pushing the company to do something about the situation (the lawyer you spoke with who told you that transferring an employee to another location can be seen as an adverse employment action / retaliation by the employer was absolutely correct.) If the employer makes your life more difficult in any way after making any type of complaint to them about anything in the workplace then such actions amount to retaliation against the employee. However, the retaliation that you are suffering from because of the transfer is not legally actionable retaliation rising to the level where you can file a complaint with the US Equal Employment Opportunity Commission (EEOC) and/or bring a civil lawsuit against the employer for such harassment/retaliation.

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Regarding other laws that might protect an employee from harassment (you asked about OSHA and other federal agencies) -- I believe what you are referring to are the whistleblower laws set up by Congress to protect certain employees who come forth with adverse information about a fellow employee or a supervisor or the company as a whole. However, these laws do not apply to every person who has a disagreement with another employee over the cleaning methods used in a place of business -- these whistleblower laws are very highly specialized and they only apply in situation where the employer (or certain employees within the employer) are involved in illegal activities that affect the health and safety of the general public or that amount to your employer stealing money from the state or federal government. For example, if you worked for a doctor who was inflating medicaid or medicare reimbursement amounts and stealing from the federal government and you came forward to inform the government of this illegal activity, then you would be protected by the federal government laws against retaliation against whistleblowers and employees who come forward to report such behavior. In your situation, I can give you an example of something that might rise to the level of warranting this type of government involvement in your case (and protection from retaliation by your employer) -- if you knew that the restaurant was regularly serving chicken with salmonella poisoning in it -- and you knew that many people were getting ill and that the owners of the restaurant were deliberately infecting people OR they knew they were doing it and refused to do anything about it -- because there are state and federal food safety laws then you may have a whistleblower case there if you stepped forward and reported it to the authorities. While I understand your frustration at having to clean up and finish up after someone who does not do their job correctly in such a setting (I have worked in restaurants and in supermarkets where cleanliness and doing a correct job is important (I even worked in a fish market to get through law school and every cat in the neighborhood loved my shoes ! :)) from what you described above, the actions of the other employee and your reporting of it to the employer do not qualify for the whistleblower type protections against employer retaliation that you seem to think might apply here.

-

As my colleague noted above, your status with this employer is as an "employee at will". Almost every employee in the United States is an employee at will for the employer they are working for unless: (A) the employee is a member of a union (in which case the union contract between the employer and the union dictates the employment relationship and the terms and conditions of when a union employee can be terminated), or (B) the employee has a written employment contract with the employer setting forth in writing the terms and conditions under which the employee can be terminated from the employer (such employment contracts are usually limited to very high level Chief Executive Officers (CEO's) of a company or Company presidents and vice presidents). All other employees are legally "employees at will" which literally means that under the law, the employer can terminate the employee for ANY reason or for no reason at all. The employer simply does not have to give a reason to you or anyone else why they are hiring, firing, promoting or demoting a person or persons and if the employer does not give a reason to the employee for the termination, demotion, etc -- that still does not mean that the employee has a legal case against that employer for wrongful termination and in such a situation, again, the only actionable claim that the employee might have against the employer would be if the employee could show that they were terminated and/or other adverse employment actions were taken against them due to the fact that the employer was engaging in an underlying pattern of discrimination due to the employee's race, gender, age (over 40), disability, religion or sexual orientation.

-

I hope that all of this assists you in understanding the types of employer actions against an employee that are and are not actionable in the law. It seems that my colleague was attempting to explain to you that you are/were an employee at will who can be terminated or demoted or transferred for any reason or no reason and under the workplace facts that you describe, your case does not rise to the level of being a legally actionable claim for discrimination and retaliation because you made the complaint regarding something other than legally prohibited discrimination suffered at the hands of fellow employees or supervisors. I also reviewed the Nolo article that you pointed out and if you review it carefully you will note that while it states that retaliation is prohibited when you make a complaint to the employer -- it also discusses the type and kind of actionable complaint as being only those complaints regarding illegal discrimination in the workplace due to race, gender, etc. and suggests that you file a complaint with the US EEOC -- which is the federal agency that oversees such issues and complaints for discrimination in the workplace.

-

I realize that this is a lot of information to digest for anyone and also that you are most likely disappointed and probably did not want to hear any news that was less than your being able to file complaints against your employer with the EEOC and your being able to file a lawsuit against the employer if your employer did not correct the situation and punish the person who should be punished (the person you were left cleaning up after) and you may continue to search for legal articles and sources who seem to support your initial view of the matter of illegal retaliation by the employer -- so it might be your best bet to simply contact your nearest office of the US Equal Employment Opportunity Commission (EEOC) - you do not state what area of Florida you are in, but here is a link to information on the Tampa FL EEOC field office - http://www.eeoc.gov/field/tampa/

and the Miami Field Office -- http://www.eeoc.gov/field/miami/index.cfm -- you can speak with an investigator at either or through either office and get their determination regarding the complaint made to your employer and whether or not they will or would pursue a complaint regarding these matters against your employer.

-

I hope that all of this helps. Please let me know if you have further questions -- you may want to contact the EEOC and return with any questions that you might have at that point. I am online most afternoons and evenings.

-

MARY

-

Please press the 3rd, 4th or 5th smile face below so I will be given credit for and be paid for my time. I will not be given credit for assisting you unless you press a positive rating below. Doing so will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you today. THANK YOU VERY MUCH !!!


)
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Customer reply replied 4 years ago
Wow, I am disappointed but I am really impressed with your explanation. Thank you

I am really not trying to be a difficult employee but I work for this company for 19 years and I know exactly how they operate. It will start with a transfer, then the retaliation will escalate. So if there are no laws protecting employees (sometimes I just realize that we are no better than a third world country) from abuse and retaliation, would it be possible that I need this case to be re investigated and escalated to a high level management.
I really don't care if they terminate me or not, I am just few years from retirement anyway, but I refuse to be harassed, abused or retaliated against

Thank you
Employment Lawyer: Legalease, Lawyer replied 4 years ago

Hello again --

-

Are you over 40 years old? (I ask because you stated that you have been there for 19 years) -- if so, perhaps you can make it into a discrimination case and claim that they are transferring you in order to put you out of a job due to your age situation. Other than that, it is just a regular complaint to upper management with no protections for you in the event they decide to start pursuing you to run you out the door.

-

And I ABSOLUTELY agree with you regarding our employment laws being no better than a third world country -- it is very, very true. Employers can harras and bully employees for any reason or no reason and unless you can find a discriminatory reason behind the harassment and bullying such as due to your gender, race, age, disability, religion or sexual orientation, then your only real recourse is to leave the job to preserve your sanity and health (I have been in that same position before - being bullied for every small thing by a jerk of a boss and there is simply nothing that you can do about it when the company wants to protect the jerk boss (in my case it was a rainmaker at a lawfirm - he brought in a large amount of clients and so they let him treat everyone like garbage and my complaints fell on deaf ears)). About the only thing that is positive in this situation is that the unemployment compensation laws are a bit stricter than the employment laws and even though a company has the right to legally let you go for any reason or no reason, the company must still have a REASON in order to deny the employee unemployment benefits. And so in a situation where you have been abused and harrased and you can provide some proof of such treatment (recorded messages, text messages, perhaps a witness or two) at an unemployment appeal hearing, then you should have no problem getting unemployment benefits awarded to you while you are looking for another job.

-

Finally, thank you for the compliment regarding my answer -- I knew that the prior answers weren't very clear and it is a hard topic to set out and make it clear to a customer -- so that was what I was hoping to do. And I am very glad that you took the sad news with style and grace -- there are many customers who simply want to shoot the messenger (I am sure you know what I mean) and it is refreshing to come across someone like you who can accept it for what it is -- just so long as it is explained clearly to you so you know what you are dealing with.

-

If you have not already done so, I would appreciate it if you would press a positive rating below my two answer boxes here on this thread (if you are on a subscription plan it will not cost you any additional money to press a positive rating more than once on the same thread). Also, if you found the explanation helpful, I would appreciate it if you could send a compliment regarding my approach and clarity to my bosses at [email protected] and/or [email protected] -- they are really big on hearing about the individual experience of each customer with each expert and this seems like a good question and topic to refer to them (I do not typically fish for compliments but I did put a lot of review and thought into the answer to try to be as clear as I could -- I am sure you have run into some legal experts who have a hard time writing things in regular ENGLISH --LOL (it is all legal speak!).

-

Please let me know if you have more questions -- you can ask them today or any day into the future or you can ask for me for future questions by stating at the beginning of your question "This is for Mary M Esq" and then continue writing your question. The question will then show clearly on my board and I can jump right in and answer you at your request.

-

-MARY

-

Please press the 3rd, 4th or 5th smile face below so I will be given credit for and be paid for my time. I will not be given credit for assisting you unless you press a positive rating below. Doing so will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you today. THANK YOU VERY MUCH !!!


)

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Customer reply replied 4 years ago
Correct I am 59 years and a woman so basically I am no longer a good asset for them
My boss even made a sarcastic comment to HR manager stating "oh she is another one with 20 years"
Employment Lawyer: Legalease, Lawyer replied 4 years ago

Hello again -

-

Then I do suggest that you file a complaint for age discrimination with the EEOC. Turn it into a small war against them. Once the EEOC receives your complaint then the company will be required to cooperate with the EEOC investigation and all of this information about the way you were treated will come out. You brought the co-worker's sloppiness to their attention and any other company would be thrilled to have such a conscientious employee as you -- but your employer decided to use your complaint as an excuse to send you to another location which getting to is a hardship for you (whether it is a hardship or not you should come up with some reasons why the new location and travel to and from the new location is a hardship for you). Then claim that the company did this because you are 59 years old and they are simply interested in making your life difficult enough with them so that you will quit and they can put their resources into their younger workforce. If the EEOC finds in your favor, you will be entitled to back pay (if you have quit or been terminated since the filing of the EEOC complaint) and generally you can get a settlement from the company in order to not demand your job back (they will pay you so that they do not have to take you back as an employee which will be one of EEOC's requirements if they find in your favor). If you make contact with someone in the Tampa or Miami offices you should ask them for the blank complaint documents that you need to file a complaint with EEOC (they may send you internet links if the documents are online).

-

MARY

-

Please press the 3rd, 4th or 5th smile face below so I will be given credit for and be paid for my time. I will not be given credit for assisting you unless you press a positive rating below. Doing so will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you today. THANK YOU VERY MUCH !!!


)

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Customer reply replied 4 years ago
Thank you soooo much.
I am not sure why, but they changed their mind about locating me. Furthermore I was contacted by some HR "director" who was requesting my cooperation because they are investigating both my boss and the area manager for violating company policies. They also promised me that my job is safe and there is nothing to worry about, and he deeply apologized for what these managers made me go thru and for their unethical behavior :)
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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