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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12614
Experience:  Significant experience in all areas of employment law.
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I am a manager at Old Navy, and have recently been put on

Customer Question

Hi Patrick,
I am a manager at Old Navy, and have recently been put on paid administrative leave for a pending investigation, indicating my time sheets were being reviewed. They also indicated there was a complaint to HR about me in which alleges hostile behavior, but did not provide specifics or information further than that. I realize they do not have a legal obligation to do so, nor am I entitled to an interview to contest any claims of the investigation, as we are in an at-will state. However, due to circumstances, the timing of the investigation, I believe this is possible retaliation for whistle blowing payroll fraud and wage discrimination (against a peer of mine) made by two of my superiors.
My former General Manager (who has since been terminated) would frequently "manage payroll" by recoding employee shifts under their earned Personal Time Off, so as to appear he was not continuously exceeding the store's payroll budget. I brought this to the attention of the assistant store manager (also my superior), and he indicated he would talk to him about it. I also brought up my other concern, and disclosed that I knew my GM had demoted another managers' position from a full-time, benefitted position to a lower, part-time/non-benefitted position without her knowledge. At the time, I didn't realize my assistant managers' involvement in this scheme, and unknowingly was blowing the lid off his actions as well, only to find out later that he not only already knew about it, but played a large roll in manipulating her as well. However my GM and ASM were very close, and would often hang out outside of work. As I did not believe this would bring a fair resolution to the matter, I brought it to the attention of our Loss Prevention agent, who also did not indicate an intention of investigating or escalating the matter. It is possible that he did, or someone else did, because within a matter of a few weeks, my general manager was fired for payroll fraud. I was not interviewed for his investigation, and as the issue of my peer's demotion had not been addressed, I brought it to the attention of my District Manager (who was also known to go out for drinks with my GM), and indicated the ASM's involvement. Our conversation was cut short as she was in a hurry to get on a conference call, but she resolved to reinstate my peer's position as full-time. She also promised we would call me to continue our conversation the following day as I pressed I had further concerns of a hostile work environment, bullying towards me, and fraternization, however I never received a follow-up phone call. In the following weeks, the ASM recommended a replacement GM... His Sister-In-Law. She was hired. By my district manager. After only a week of training and on her first day at the store, she notified me that I was put on administrative leave. Rumor has it that she is making way for HER good friend to replace me. I called our HR manager, and began to tell her about the situation, and started with the fact that our new GM is family by marriage to the ASM - she suddenly had to attend to personal matters, and resolved to call me the following day, when we could discuss the allegations against me and my concerns as well. That was supposed to be Wednesday, and once again cut short before I could fully express my concerns. My 3 day paid administrative leave is supposedly up today, and am fully expecting a termination assuming I do not resign before hand. Unfortunately my tendency to abide by the rules has earned me previous HR calls, and allegations of hostility after an employee complained about not receiving enough hours, to which I addressed that her lack of availability on nights and weekends was unrealistic to accommodate in retail. My former GM unfortunately was deemed a favorite amongst the employees, as they just texted him whenever they wanted shifts.. Hence one of the reasons contributing to his abuse of payroll. For that, and because my former GM made it no secret that he hated me (and worked very hard to tarnish my reputation amongst the associates) I know I am seen to many of them as the "mean" one. As far as questions that may arise about my time sheets, my GM and ASM would frequently schedule me either without or very late lunch coverage, forcing me to meal violate. Both pressured me to not clock out and just take my lunch late, and would then later alter my punches to indicate I had taken my lunch on time, even when I just worked through it being the only supervisor in the building (because they left early). My question is, is this worth pursuing with legal action, even having previously documented HR allegations made? Or am I better off resigning and preserving my right to truthfully tell future employers I have never been terminated?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for requesting me to answer your question. I am very sorry to hear about all of this.

As far as your retaliation concern, retaliation is only illegal if it is motivated by an employee having engaged in legally protected activity. "Whistle blowing" can be a legal protected activity, but it is a legal term of art that has a highly specific meaning. Generally in order to be protected from retaliation for "whistle blowing," you must make a report to a government agency. For example, if you believe your employer is committing tax fraud and you report them to the IRS, that would be a protected form of whistle blowing. But generally speaking, making reports to others within your company regarding payroll matters is not a form of recognized whistle blowing and therefore not a legally protected activity. This is seen as an internal matter and not something to which whistle blowing protection extends.

As for having been pressured to misrepresent when you took your lunches, I don't see that as being a defense, either. If you were being denied your lunches altogether, you might have a claim for penalties, but still this would not get you around the fact that you submitted time cards which did not accurately reflect your work hours. The fact that your managers changed your time cards might be cause for your employer to discipline them, but this doesn't really factor into the legality of any decision to let you go.

In short, the facts you describe would not typically give rise to any causes of action against your employer. Resigning will likely result in the denial of unemployment benefits, which is something you should be aware of, yet it will allow you to truthfully represent that you were not fired. Only you can weigh the importance of that versus being able to collect benefits. I hope that my answer is helpful to you in deciding what to do.

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 moving forward.