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I am not in a protected class but feel that I am being

Customer Question
Hi, I am not...

Hi, I am not in a protected class but feel that I am being harassed at work and reported it to my boss who is now trying to get met to resign because he favors the harasser. He has lied to me and changed my job hours to push me into resigning. Is this retaliation? or do I have to be in a protected class?

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Ny

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

At will, full time

Submitted: 7 months ago.Category: Employment Law
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9/27/2017
Employment Lawyer: legalgems, Lawyer replied 7 months ago
legalgems
legalgems, Lawyer
Category: Employment Law
Satisfied Customers: 12,983
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Employment Lawyer: legalgems, Lawyer replied 7 months ago

I am sorry to hear this;

Unfortunately the federal and state protective laws do not cover all employees; rather the courts have held that one must be in a protected class; while NY extends this to smaller companies (4 employees or more versus the federal 15 or more) and extends it to sexual orientation and gender identity.

Alfano v. Costello 294 F3d 365 specifically states it is not a "general civility code".

As such the remedies available to an employee is
1. remedies offered by HR

2. possible worker's compensation if the workplace environment contributes to stress/anxiety

Retaliation is actionable when a person is being mistreated due to reporting an illegal activity.

I certainly wish the law would change in this regard and expect it will eventually since people are becoming more aware of how this type of environment can negatively affect one's quality of life/mental health.

For a general summary please see here

Further questions? Please post here to continue the chat.

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Customer reply replied 7 months ago
I work at a civil service entity, not in a union, no contract but when I was hired my boss told me that as long as I could do the job I would not be terminated. Then he hired my harasser 5 months later and he favors her with special consideration. He will not even listen to me. He has given my shift to her friend and has told me that I wasn't performing well, in the 10 months I have been there this is the first time that he has expressed any problem with my performance and I believe it was due to my complaint. He never said This until he tried to convince me to resign, he offered to let me finish the month while I look for other employment. I do not intend to resign, I like this job.
Employment Lawyer: legalgems, Lawyer replied 7 months ago

Implied in every contract is a covenant of good faith and fair dealing; so it is possible that the court would find that the employer acted in bad faith by verbally assuring job security if the job is actually at will in addition to the subsequent problems. However, when one is not in a protected class it is difficult to prove breach of contract because of the at will aspect of most employment situations.

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Customer reply replied 7 months ago
Would this be considered "constructive discharge"?
Also, he has to get my resignation in writing per policy.
Employment Lawyer: legalgems, Lawyer replied 7 months ago

Constructive discharge is often used in sexual harassment cases; generally the employee has the burden of proving intent on the employer's part- that they intentionally created the environment that was objectively intolerable.

It is a very high standard. The courts apply this doctrine very narrowly due to the "at will" nature of employment contracts.

As with any intent legal issue, since intent is subjective it is very difficult to prove; while circumstantial evidence can be used to prove it, it comes down to the judge's perception, and since this type of suit is brought after the fact, the employee may find him/herself without any proper remedy.

For example, Schultz v. Congregation Shearith Israel of the City of New York et al, 2017 WL(###) ###-####(2d Cir. Aug. 10, 2017) failed to find constructive discharge and considered whether there was discrimination due to pregnancy.

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Employment Lawyer: legalgems, Lawyer replied 7 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
http://www.americanbar.org/groups/public_education/public-information/how-do-i-find-a-lawyer-.html
Terms of service can be viewed here:
http://ww2.justanswer.com/terms-service-0#information

Ask Your Own Employment Law Question
Customer reply replied 7 months ago
I was terminated yesterday. He was trying to tell me that I had resigned but I told him that I love this job and I do not plan on resigning. He insisted that we talked about this and I agreed that we had but I told him that I never resigned or planned to resign. He said that today was my last day. I made him say he terminated me. Then I left. Never written up or spoken to about my performance. No complaints about my work until Sept 1st. Apparently he already hired my replacement. Probably another relative of someone there. My job was working in a copy service at Cayuga- Onondaga BOCES in NY. My shift was given to the daughter of a long time employee in maintenance. Now I have to apply for unemployment. In May I went to him to ask him to speak to my supervisor about the way she talks to me (aggressive, hostile) and he held a meeting to discuss it, she denied everything and he told me that if I couldn't get along with her that he would have to make a decision about which of us was the more valuable employee and that she had production experience. I took this to mean that I would lose my job if I complained about her again. I did not speak to him about her again until Sept 1st when her behavior became unbearable. He changed my shift that day. One week later he told me that i was not "getting it" and that he would give me until the end of the month to find other employment. I bet the new hire is a good friend or relative of someone else at BOCES.
Customer reply replied 7 months ago
After the meeting where he changed my shift, my anxiety level went through the roof and my doctor told me I should think about finding another position. But I really do like the job and this is so unfair that I did not want to give it up. I was hoping that if I took the 2-10 shift that he would see that the performance issues were just lies my supervisor told him to get rid of me.
Employment Lawyer: legalgems, Lawyer replied 7 months ago

I am sorry to hear that this was the end result;

the problem with at will employment is that either party can end the employment relationship at any time without cause so long as it is nondiscriminatory/retaliatory.

Company policy manuals do serve as part of the employment contract so if any of the procedures or policies were violated that can give rise to a cause of action.

Further questions? Please post here to continue the chat.

Satisfied? Kindly rate positively so I receive credit for assisting you. I hope that you feel I have earned

5 stars 🌟🌟🌟🌟🌟*****

as I strive to provide my customers with great service. ☺️

(no additional charges are incurred).

Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. The terms addressing this can be viewed here:

http://ww2.justanswer.com/terms-service-0#information

Thank you and take care.

Ask Your Own Employment Law Question
Employment Lawyer: legalgems, Lawyer replied 7 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
http://www.americanbar.org/groups/public_education/public-information/how-do-i-find-a-lawyer-.html
Terms of service can be viewed here:
http://ww2.justanswer.com/terms-service-0#information

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