California Labor Law News
California Labor Law: No Right to Terminate
In Mark's words, this is what led up to his termination…
"An incident occurred regarding a shipment that was supposed to be carriered (large shipments are carried, not couriered) to a customer—I was the logistics coordinator for the company. But the wrong carrier was used; it was a small shipment—six pallets totaling 2,000 lbs from Canada to the US. The carrier that was assigned to the shipment did not have a discount in place on behalf of the client and the wrong carrier was used because it gave us (which would be reflected on to our client) the better rate. I had no knowledge of the shipment—somebody else arranged the other carrier.
The client told my boss that they spoke to me directly about this shipment; they said that I told them our shipment is outdated and that is why the wrong carrier was used. I disputed that with my boss—I never spoke to the client. The shipment ended up costing about $3,000 more than it should have. We don't record incoming routing calls so anybody could have made that decision but my name was attached to the paperwork so the client just assumed that they spoke with me.
After this happened, I did some research and determined the options: we would be able to change the billing code and charge it back to the vendor who had a discount with the shipper; they would pre-pay and add those charges and send it to the customer. The discount would have been fine: everybody would have been happy with the outcome.
But my boss told me that the shipment had already been paid for by the client and there was no way to make any changes. During my investigation of this incident, I spoke with the carrier who offered to make the change and I was never told by the carrier that the shipment was pre-paid.
In the grand scheme of things, I think my bosses were looking for an excuse to fire me and they used this incident as reason for termination. I have a few ideas about why they wanted me out:
1. I was the second highest-paid employee in the department and getting rid of me would have saved them a substantial amount of money;
2. They wanted me out to leave a position open for family members or friends they started to employ—in fact they hired two friends of my former boss today.
On Friday, May 23rd I was called into a meeting with two VPs and a rep from HR. They sat me down and said, 'We have to let you go; this incident is the straw that broke the camel's back.' They also said it came all the way from the top—the decision was made by the owner of the company.
I was in total shock! I worked for this company for 19 years—I am 48—and I was a faithful, loyal and hard-working employee all these years.
To be honest, in all those years I had two write-ups against me; one for being too loud in the office—I was arguing with a carrier about their rate and defending our client—and the other issue was this: we did a rate study for clients and one of the rates was questioned. I was asked to research how the rate was determined so I called the carrier that gave the rate but they couldn't give an answer until three days later. So my boss wrote me up for not following up in a timely manner. I had no control over that.
To me it all sounds so petty—like we were in grade school.
I was not given the opportunity to question their decision. Right away, I sent an email to your lawyer at LawyersandSettlements and was told by my employer to file for unemployment.
And here is another thing: they withheld money from my bonus check years ago: I had to cancel a carrier 24 hours prior to pickup and the carrier incurred a $700 charge which was passed on to my company. That charge was then deducted from my check. That's not even the half of it. Another time they took $1300 from my check: I was legally within company rules but the customer who received the shipments refused to pay. A large freight cost was then deducted from the salesman's paycheck and mine. According to them, they checked with their attorney and they were within their rights. Were they?
Now I am obviously unemployed as of May 23, 2008 and my next step is to find out if I have any recourse."
California Labor Law: Hostile Environment
Gwen (not her real name pending a potential lawsuit) is 64 years old and quite a stockbroker celebrity in Southern California??"she was an exceptional stockbroker. She has also put up with "a lot of BS" and withstood the heat of the brokerage business. "The reason I survived is that in dealing with the male psyche of this profession, it has pushed me to be smarter, brighter and better than most of the men I have dealt with," says Gwen. But the corporation got the better of her.
"I was employed at Wachovia as a senior VP and investment officer," says Gwen. "Like many firms, it pays politically correct lip service on its website, HR publications and training programs to encourage and support women and minorities but in reality it is all propaganda to cover their butts. They really don't support women in the business, in fact they discourage them. But I was hired because I had a good book of clients and the guy who hired me respected and admired women (they fired him a few years later).
I was doing well but the market crashed in 2000--2001 and along with that, my husband was diagnosed with Alzheimer's. Then my parents became ill. For the last seven or eight years, I was the primary caregiver and sole financial support of them and my brother. A lot of pressure was on me. My energy level and ability to do high-key investment seminars for women (my main job) diminished and consequently, over a five-year period, with a combination of market conditions and demands on me, my business did not grow. However, I kept the firm informed at all times.
But Wachovia made it difficult for me to continue my work. They took away my private office and put me in the bull pen with the trainees. In December of 2007 the branch manager gave me a probationary letter which I was forced to sign??"if I didn't sign, I would have been fired on the spot.
The letter said that, 'Over the next three months, you must bring in half a million dollars a month in new assets or you will be terminated.' Nobody else was given that letter and it was impossible to achieve in this kind of market. The other brokers in the office were glad just to keep their existing clients. In other words, it was a procedure to protect themselves from my wrongful dismissal.
(By the way, some brokers were making more than me at this time when I was down, but others were making less. And all those brokers had partners to help them??"I had a family to support.)
They kept on raising the bar: I am a year away from retirement and they pulled this on me. I walked away with no medical insurance; no life insurance that I paid into for 10 years on my husband. I would have been eligible for social security benefits but now I have to wait more than a year and I'm not even eligible for health benefits yet.
If they hadn't pressured me, I would have been better able to do my job. That letter made me physically ill; it was like a 90-day freight train bearing down on me. How could I perform in an environment like that? It gave me insomnia and my doctor had to prescribe meds to stop my stomach spasms from so much stress. I filed workers' compensation the day I left and that is still ongoing. They are fighting me on it, but my attorney is optimistic and we are going to court in a month."
California Labor Law: Discriminated Against and Dismissed
"Getting fired really surprised me, we were all getting along at work," says Violeta. She worked for three years as a senior cook in the food services department for the Navy, Army and Marines. Everything was fine until two months ago when she got a new boss.
"I basically run the kitchen, especially when the manager is not there," she says. Which means that she has to give orders. "The boss cut back everyone's hours back except mine," she says. "They were working less than 30 hours a week and I continued to work 40 hours. This created a lot of tension and resentment. My co-workers filed complaints about me and one boy said that I pushed him. Another assistant said that I harassed them-but I was just telling them what to do??"that is my job.
After I explained everything to Rick, my boss, and I wrote everything down, he talked to the people who complained. The next day, Rick told me that this boy was on probation.
The following week, my boss said that he got another complaint and had to suspend me. After three days, he called me at home at 8.30am and asked me to come in at 10.30. 'Am I going to wear my uniform', I asked. 'No', he said. I was very worried about the outcome and asked my aunt to come with me. My boss and one of the cooks were waiting for me outside in the parking lot. He handed me my jacket and termination papers. No check.
'For the good of the company, I have to let you go,' he said. That was all. I was so shocked that I couldn't reply. He wanted me to sign the termination papers but my aunt told me not to sign anything.
He told me to bring my uniform back and call Rosa at HR in Los Angeles to determine how many hours I worked. Instead I went to the labor board and they said I don't have to call HR. Besides, it is long distance. The labor board tole me that my boss was supposed to have my check ready when I was terminated. The labor board said they would take care of it--that was May 5, 2008.
I think Rick fired me because he is bringing in new staff from his last restaurant job, such as the boy who said I kicked him (he was recently hired). I worked at this company for three years and I don't deserve this treatment. The soldiers even wrote me letters saying how hard I worked??"I kept the letters. I am owed more than $2,500: two weeks work and one year's vacation pay.
Meanwhile, I am trying to find work. I have missed a mortgage payment and now I am afraid that I might lose my house. I don't have medical insurance and have high blood pressure; getting fired has made me desperate. My aunt and I wrote to the labor commission and the governor, saying that I was wrongfully terminated and that they treated me like a criminal. Why did they fire me in the parking lot? I am so upset."
California Labor Law: 60 and White spells Age and Race Discrimination
"Last October, I went to work on Saturday morning, punched in the time clock and someone was at my waitress station," says Emma. "A few minutes later, the manager came in and told me to go into her office, which I did.
'Sorry, but I have to let you go,' she said.
"What on earth for, I'm a really good worker,' I said, completely shocked.
'I got a couple of complaints about you yelling,' she replied.
'You're gonna fire me for that? I'm almost 60 years old, where will I find another job?' I asked her.
"I know that I have a big mouth??"my voice carries and it runs in the family," says Emma. "But the only I time I ever yelled was to the kitchen staff: 'Where's the food', or 'what's taking so long,' I have said with my voice raised on occasion. I didn't yell at a customer--ever. And we aren't talking about fine dining here. It's a family restaurant -there are lots of kids are yelling.
'Can't you let me stay?' I almost begged her.
'It is out of my hands, Emma,' she said.' I can't do anything about it, but If anything comes up, I will call you.'
"Later on, I knew that was a load of bullshit, but I was hoping that she meant it. I didn't say anything to anyone after that, I just walked out the back entrance.
It turns out that she hired a server from the other IHOP where she previously managed??"I guess she liked him more than me. She is Hispanic and so is he??"I'm white and just turned 60. Now I know what it is like to be Hispanic or Black or any minority race discriminated against??"because it happened to me, a Caucasian.
I received my last pay check when she fired me, but I didn't get any vacation pay. We aren't unionized so I didn't receive any severance package. It has been a real financial burden--one day I'm counting on my regular check at the end of the week to pay the bills, the next day I have nothing. I filed for unemployment benefits the next day and had a two-week waiting period, so I had no income for those two weeks.
I have phoned so many places and nobody is hiring. The first few weeks after I was fired, I must have phoned 30 places and none were hiring. Some of them didn't ask my age; they just didn't need any help. But you know just as well as I do that it is hard to get work when you reach my age.
IHOP is not a good place to work, period. Apparently the boss said something to another white girl and she said it was discrimination. The boss said that was a big word for her to use. Another girl quit because she wasn't paid overtime and another girl was just fired??"she filed a claim. Nice place, IHOP. There are only two white employees left where I worked and one black woman. All the rest are Hispanic.
And they really make you work hard. They have secret shoppers so you have to push to order more. We are supposed to check tables after two minutes to see if they are OK, if they need anything else. I never filed a complaint with the labor board because I didn't think it would go anywhere. But my co-worker is claiming labor violations against IHOP for harassment??"she is still working there. She encouraged me to find a lawyer on your website."
Racial and age discrimination is not tolerated in the state of California. There are laws protecting employees on their race, color, national origin, religion, age, disability, pregnancy, sex and sexual orientation. Age and racial discrimination can result in wrongful termination, hostile work environment, and demotion. Employers have a duty to prevent discrimination in the workplace, and they must permit employees to seek management's helping preventing it. As well, employees are protected from retaliation if they complain about racial harassment or discrimination. Employers cannot punish employees directly or indirectly for making complaints, assisting or opposing any prohibited practices such as sexual harassment and racial discrimination. If an employer does retaliate, an employee has grounds for a lawsuit.
If you have been unlawfully terminated, you may be eligible to recover the following:
past lost wages and other benefits; future lost wages and benefits; general damages including emotional distress and pain and suffering; punitive damages; and attorneys fees. It might be worth your while to seek legal help.
California Labor Law: The Busboy, 62, is Fighting Back
The lawsuit seeks punitive damages and compensation for various breaches of California labor laws, including emotional distress, pain and suffering, unpaid wages, meal and rest periods denied, statutory penalties, interests, and attorney's fees.
Ricardo Hernandez would have been 27 when he started work at the pancake house, and became a dedicated, loyal and model employee. However, that all appeared to change after he filed a complaint against the restaurant with regard to unlawful wage practices with the US Department of Labor.
His lawyers maintain that the restaurant's action against Hernandez is a classic case of retaliation against a whistleblower. It is alleged that the pancake house directed a number of actions and circumstances against Hernandez designed to force him to quit. When he didn't take the hint, the restaurant summarily fired him without just cause, warning or even an explanation.
Imagine working at the same place for 35 years, only to be told one day that your services are no longer needed. You're 62. Imagine the toll that would take on your life, and your emotional well-being.
Those in his corner maintain that Hernandez was treated deplorably.
According to the complaint, management started to become highly critical of Hernandez shortly after he filed the report with the US Department of Labor (the alleged wage violation was not identified). Along with unfounded accusations and stricter regulations relating to his work, his hours were reduced??"and when he did work overtime, it has been reported, he was not paid an amount that would have represented an overtime rate.
There are various statutes and requirements governing California labor law overtime.
It is alleged that he was required to work without rest or meal breaks (remember, Hernandez is 62)??"an alleged violation of California labor law breaks. There were, according to his lawyers, a constant barrage of comments and complaints relating to 'old age' and 'poor vision.'
Just before he was fired, Hernandez was demoted to busboy after 35 years with the employer. He was let go in October of last year.
Hernandez filed a formal complaint of discrimination against the International House of Pancakes with the California Department of Fair Employment and Housing. A 'right-to-sue' notice was issued on November 16th, and on March 19th of this year Hernandez filed a wrongful termination lawsuit in Orange County Superior court.
Named as defendants in the lawsuit were MD Hope Corporation, a franchisee of International House of Pancakes, and its owner Sammy Saeed Medali.
Among the alleged violations are Age Discrimination and Perceived Disability Discrimination, Wrongful Termination, Failure to Pay Overtime Compensation, and various other Labor Code violations.
In the end they thought Hernandez would just take the bus and go home. In reality, the busboy is fighting back and looking forward to his day in court.
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