Wrongful Termination? or Retaliation?

[mslrobinson]

What is the name of your state (only U.S. law)? California

I was working for a large food distribution company as a customer service rep for over two and a half years. The company distributes to nine of the major fast food chains, and is open 7 days a week. My schedule was Tuesday thru Saturday. There are seven CSR's; however, on Saturday there were only two of us, of which I was the lead. I could take over 100 calls a day, and make almost the same on any given day except Saturday. On Saturday it could double.

We were not able to take our breaks. Our boss said we needed adequate phone coverage at all times. Especially on Saturdays, since there were only two of us, we would actually clock out for lunch because it is the law, and then sit back down at our desks and try to get caught up with our work, so we could try to leave at five! This went on the whole time of my employment. I asked my boss for another person on Saturday. She denied my request because nobody wanted to work on Saturday. We all asked her to schedule our breaks, many times. It never happened. She said we were adults and could figure it out. Whenever we did try to take a break, we would all end up in a meeting getting reprimanded for not having enough phone coverage.

The last month of my employment, four of us had been discussing going to the labor board, just as our transportation drivers had recently done. We had been going back and forth on it but word of it had reached our CSR lead who also took it to our boss.

On Saturday, June 28th, I brought my adult son to work with me. It was a middle point for his friend to pick him up. This was the first and only time I had done so. Three of the other girls had brought in their young children repeatedly and during the week when all the managers are there, so I didn't think it was a big deal for my adult son to sit with me and wait for his ride.
I put my son into an empty cubicle where he set up his laptop and kept himself entertained. Well this lead CSR just happened to show up this day for a couple hours of unnecessary overtime which she snaked in wherever she could. By the way, she is also one of the three girls that brings in her children. As a matter of fact, she brought in both her children for hours just the day before. Anyway, I introduced her to my son, explained that he was waiting for a ride and went back to my very busy work. She was nice to us and I didn't think anything of it.

On July 7th, 10 days later, I get called into an office by HR. They said I had brought in an unauthorized person to work without permission and that this CSR lead had seen him on the computer. This person had gone to my boss and told her this. Well, instead of coming to me and asking me what happened, they started an investigation. They involved management, as well as the corp IT people and IT managers to see what my son might have done. They said I knew I wasn't supposed to bring anybody in and that my boss had told me, which was untrue. Oh and my boss was nowhere to be found during this meeting. I was in complete and utter shock. I told them my son was on his own laptop, not the company's computers. I have never been in trouble for anything and I have been an excellent employee, with reviews to prove it.

Well the HR ladies said that they were still investigating and I was being suspended pending their findings. They also said I was an intregal part of the department and they would hate to see me separated from the company, but that it was out of their hands. And they said, company wide, this is the first time they have ever had this situation arise and they weren't sure how it was to be handled.

Needless to say, completely shocked, I was called on Friday July 10th by HR. They told me the decision from the higher ups was "separation". Too many people got involved as well as time and money spent. I asked what I was being discharged for exactly, and the HR manager said "Misconduct". Misconduct for what I asked? She said, for bringing in an unauthorized person without permission. Wow. Nothing about computers? They couldn't find anything in their two week investigation, because there was nothing to find. The letter I received from them with my final check said simply, Separation due to "Misconduct". That is all that is on the letter.

Now once the shock wore off, I started thinking again about the labor board conversations we were having and how my boss thought I was the "ringleader" of the group of four of us. Ironically I was not. The other three girls approached me with it knowing that I would be the one to actually stand up for us.

Could this be considered retaliation? Any thoughts are greatly appreciated.What is the name of your state (only U.S. law)?

 

[commentator]

It sounds like you accepted terrible working conditions and situations far too long. You should have involved wage and hour a long time ago due to the thing about not receiving your breaks and lunch hours...in that you were not getting paid for all the hours you were actually working. Otherwise, depending on your individual state, they were probably within their rights. If you are "going to the labor board", you should just do it, not sit around talking about it for a long time.

If you are not a union company, the Labor Board is probably not going to help with work issues, though they can steer you to someone who can answer your work issues questions. You certainly could have called them without anyone finding out about it. Then you would have had a better idea about how to handle your work related grievances with the company.

My questions now. Was there a company handbook. was there a company policy, was it known and clearly stated that you could not have another person in the workplace with you? That you could be fired for doing so?

Of course, since everyone else was bringing their children, etc, this probalby will not qualify as misconduct. And since you have never had a situation where you were warned, threatened or reprimanded for doing this, and because other people had done this many times that you had knowledge of in this company, this is probably not going to be considered gross misconduct. in other words, a "good" reason to fire you.

So, though you can't file a grievance, sue somebody, or appeal and get your job back, you can probably file for and be approved for unemployment benefits. This is about your only recourse. File your claim for benefits immediately. They will want the exact reason why you were told you were being terminated. You will be telling them how you brought your son to work how he did nothing but use his own laptop, you had never been told this was a major violation of the rules, others had brought family members to work, etc.

They will contact the employer, get a story from them, and then issue an initial decision. Then you will appeal, or the employer will appeal, and you will have a hearing to determine whether or not to grant you unemployment benefits while you are looking for another job.

As to what OTHER recourse you have, the answer is, not any, really. Yes, they very likely wanted to get rid of you because you were a troublemaker. It was retaliatory. You were protesting their staffing and employee treatment issues. They have the right to fire you for anything unless it violates certain policies otherwise mentioned here on these posts. Being a troublemaker, because they didn't like you, all these are reasons the employer CAN fire you.

Your recourse is to file for unemployment and find another job.

 

[mslrobinson]

Wrongful Termination? Retaliation? or Whistleblowing?

I appreciate your reply.

I actually already applied for unemployment, which I was denied. I am awaiting my appeal hearing date as we speak. I received a letter of acknowledgement on Sept 2nd. How long does it take to get a hearing date?

Also, I have the paperwork filled out for the labor board. I just haven't sent it yet.

I just got my hands on my employee handbook. It was in my desk, which they cleaned out and didn't return. Another co-worker grabbed it for me. There is nothing in it about misconduct for bringing in unauthorized people. Also, the company works on a progressive discipline policy, which did not happen in this case.

Thank you again.

 

[commentator]

Ask for an in person hearing instead of a telephone if you can. It's always best to confront them directly. Get the information together about the company policies you were aware of. Get your story straight about what actually happened, what you were told, whether you received any warnings, etc. Be sure you are filing a claim for each week that passes, even though you are not getting checks right now. You have a pretty good chance of getting approved if you present your case well in this appeal.

Be sure you do not bring in all those other issues about how you were not being paid for lunch hours and breaks had asked for help. This has nothing to do with your firing, and you will only muddy the water. Stick to the actualy reason for your firing, which was the incident of bringing your son to the worksite. This was not gross misconduct as they are claiming.

You might mention that you had been discussing with your fellow employees some problems related to pay and hours worked, and you feel that the firing may have been retaliatory. You may also mention that you have brought up some issues with the labor board regarding the work conditions, and that with no prior warnings, and no disciplinary record, you were suddenly terminated for this issue with your son.

You can do all sorts of other things in relation to appealing your case with the Labor board, but this unemployment appeal is the most likely to get you some minor satisfaction. They can fire for almost anything, but they do need to have good cause or you can get unemployment. Now, you can find a better job. Go for it!

 

[mslrobinson]

Wrongful Termination? Retaliation? or Whistleblowing?

Once again, thank you for the advise. I will not bring up all the labor board stuff in my hearing, only the facts. Do you know approximately how long it takes to get the actual hearing date? Thank you.

 

[troopdragon]

In response to the Appeal hearing Question

When I did my hearing, I appealed on 7/10/09 and the hearing was held on 8/4/09. You should receive a big envelope of information on the hearing process, which contains dates and numbers to call. I would round up all of the documentation or "evidence" that you plan on sending the Hearing officer and your former employer as soon as possible, it can really help you win the case.

 

[mslrobinson]

That is very good information. Thank you. I did not know what to look for in the mail. Also I do not really have any information to give. It all happened so fast and all I got was a letter saying I was terminated for "Misconduct". That vague. Also the HR lady telling me verbally that I was terminated for bringing in an unauthorized person. That is about all I have. Except my son also, who can testify that he was only on his own laptop. Do you think that would be helpful?

Thank you again!

 

[commentator]

Sure you do. You have lots of stuff! You are going to make the case that you were fired for "gross misconduct" which would be doing something really really horrible and against the rules, like stealing, hitting another employee, setting the building on fire, taking hostages, etc.

And of course, bringing your son into the building, when many other people, as well as your supervisor had brought their children in to the building, and you had no idea this was against the rules or was such a terrible thing to do.

You have the letter where they fired you for misconduct. You have the employee handbook, right? Go through it, page by page, and see if you can find anything that you signed off on that says that bringing an unauthorized person into the building was a gross misbehavior. If this is not spelled out, in capital letters, submit the handbook into evidence. They may try to say that your gross misconduct was letting someone else use your company's system, but he wasn't in your system, was he? He may have been using the company's wireless connection signal,but not in the information system, right? And they have no proof he was, just that the CSR tried to say he was using the company's computer. Launching a false investigation and then blaming you because they spent time and effort determining that there was no wrongdoing isn't misconduct on YOUR part. You told them the truth from the beginning, that they would not find anything, because your son was NOT on the company system.

You are saying that you had NO IDEA your job was in jeopardy, that you would not have had him in the building if you had thought this was the case. You then either have him as a witness that he had his own personal laptop and that all he did was sit in the cubicle and work on some personal paperwork, or a written statement by him that this was what happened. That the person saw you, but did not say anything to you that day is also significant.

If you have never had any write ups or warnings about this or any other issue that indicated to you that your job was in jeopardy, mention this, to get it into record. If you have ever had any favorable reviews, commendations, etc. get this into record. Submit copies of such reviews if you have copies.

You will be the one who is presenting evidence first, and what you are saying is that you believe this firing was not due to gross misconduct, and not justified, but was the result of your complaints about the way things were being handled. It was a retaliatory firing for your being a leader in complaining about the hours and scheduling.

They can come in and lie their heads off, but do remember, your word, and the words of your witnesses, if you present any, will be every bit as valid as what they say. Be very structured, professional and keep on topic. Do not go off on the tangents of how lousy the hours were, or how you never got to take your lunch hour, or how there was more work than a person could do. Good luck.

 

[mslrobinson]

'Wrongful Termination? or Retaliation?'

Thank you for your reply.

You are right on all those parts! I had NO IDEA my job would be in jeapordy for this. I don't think it was me bringing my son that got me fired, but that the management freaked out when they heard he was on a computer. They were looking for some kind of security breach. My son was on the wireless; however he was using some other wireless that was available from a residential neighborhood and had no security key. It was open. My son is a computer programmer, and I think that is why they freaked out. Once again, they could not find anything with their back door investigation, so they discharged me for simply bringing him in.

You are right also about the supervisor. She should have said something to me that day, instead of waiting and running to my boss.

I do have two wonderful reviews in my file, but I do not have copies of them. They cleaned out my cubicle for me, and did not give me any of my papers that I had in a file.

I thank you again.