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Patrick John Phillips

Patrick Phillips’s Answers

1,688 total

  • Can I be fired "with cause" for using my cell phone at work?

    I worked 2 years for a LLC, 500+ employees, at will, no collective bargaining, hourly. In the hiring process I was presented with a stack of doc.s to fill out. One I expected, an arbitration agreement [i later opted out] and a second form that exp...

    Patrick’s Answer

    It seems like your main concern is unemployment eligibility. In that case, how your employer describes the termination really doesn't matter. What matters is whether your conduct meets the EDD's definition for misconduct. Here is what the EDD has to say about telephone use in violation of company policy as it relates to misconduct:

    Based on what the EDD says there, I think you are fighting an uphill battle given that you signed a policy which expressly provided that phone use would result in "for cause" termination.

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  • Can an employer contact your doctor and say that you threatened someone

    Management lied and said you threatened another manager

    Patrick’s Answer

    Your question is rather vague and without context. If the statement was provably false, and if you could connect some sort of tangible damages to it, then perhaps it would constitute defamation. However, saying that you "threatened" someone is likely a statement of opinion, which makes it exempt from defamation. I also can't foresee how you would have suffered damage as a result of this statement being made to your doctor. But again, I am working with a very limited knowledge of the facts here.

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  • Is the employee entitles to a break after clocking out for A personal issue?

    My employees all start at 8am-4:30pm yesterday one of them had a personal issues to take care of she clocked out at 10am and clocked back in at 11am after doing so she said she is going to be taking her first break for the day. Do I have to allow ...

    Patrick’s Answer

    I agree with Mr. Nguyen. Most likely, the first hour would be considered its own "shift," and since the shift was less than 2 hours, it would not create a rest break entitlement. The remaining "shift" of 5.5 hours would entitle the employee to a single paid rest break. The employee would not have a right to take this break at the beginning of their shift, and so it would typically be appropriate to deny this request.

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  • Can my employer send me home if I have a doctors note?

    I had Oral Surgery for an extraction on a Monday. My Dr. note stated my MAY return to work that Wednesday but I came in on Tuesday (the date I was scheduled) but I was told that I have to leave. I do not get paid for those hours. Can they do this?

    Patrick’s Answer

    Your employer can send you home if you do not have a doctor's note clearing you for work. Even if you did have a doctor's note clearing you for work, your employer can send you home if they assess that you are unable to safely and effectively perform your job. If you are an hourly employee, you are not entitled to be paid for hours you didn't work.

    So, it would not seem that your employer acted improperly based on the facts you have described.

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  • Can employee be terminated for calling in sick?

    One of my employees has been showing up late, or not at all. When asked, she said she is not feeling well. She has used up all her paid sick days, and is taking unpaid sick days off with virtually no notice, hurting my business. Assuming she ca...

    Patrick’s Answer

    I strongly urge you to retain a local attorney for advice on matters like this in the future. It's a business expense that you can write off and will likely save you thousands in avoided legal disputes.

    Regarding your question, no law protects an employee who calls in sick for an ordinary cold, flu or other minor illness. Employment is "at will" absent an agreement to the contrary, so an employee in this circumstance can be terminated without notice or warning.

    However, if you have 5 or more employees and the employee in question is calling in sick due to a disability (a medical condition which "impairs a major life function"), CA's Fair Employment & Housing Act imposes a duty to reasonably accommodate the employee. This means allowing the employee to miss work to the extent that such absences do not impose an undue hardship on your business.

    Undue hardship is judged on a case by case basis, but the question boils down to whether you are suffering "significant difficulty or expense." Under FEHA, you need to engage in a good faith interactive process with the employee to determine how you might be able to accommodate their medical condition before letting them go.

    If you have 50 or more employees, the employee in question might also be protected by the Family Medical Leave Act.

    It helps to document all absences, warnings, and how this employee missing work is impacting your business.

    Good luck to you.

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  • Am I still [legally employed} if I was laid off August 21, 2014 and subsequently received six months of unemployment benefits?

    What are the legal definitions of [employment] and the verb phrase [to be employed] in California? Thanks

    Patrick’s Answer

    The law does not regulate or define employment status. What matters under the law is whether you are engaging in work, and whether you are being properly paid for the work you perform. How you define your employment status is up to you and your employer.

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  • Legal to deny employment unless have certain political view? Same quest., but require experience with specific demographic?

    Is it legal to deny employment unless a specific political view is held? Is it legal to deny employment based on candidate's past activities in a specific demographic?

    Patrick’s Answer

    • Selected as best answer

    Labor Code 1101 prohibits employers from "controlling or directing, or tending to control or direct the
    political activities or affiliations of employees." Similarly, Labor Code 1102 prohibits employers from coercing employees "to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."

    At least one court in CA has held that an exception to these statutes applies when the employee’s political activities are patently in conflict with the employer’s interests. Perhaps more problematically, though, the statutes refer to "employees," not "applicants," and so I think at least arguably they do not apply to people in your circumstance at all.

    Screening applicants based on experience with specific demographics potentially raises an issue of disparate impact discrimination. You should definitely discuss these claims in more detail with a local attorney. Good luck.

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  • Can I file a law suit against 2 coworkers who engage in sexual behavior at work in my presence?

    Ive worked at a restaurant for a week and witnessed a couple employees acting inappropriately, right next to me, without a care? This has happened on a daily basis. Basically the guy comes up behind the girl and puts his hands on her hips from the...

    Patrick’s Answer

    Putting hands on someone's hips and standing close to them is not what most people would consider to be "sexual behavior." However, it is without a doubt inappropriate conduct for the workplace.

    You may wish to inform your supervisor what these employees are doing. Your supervisor likely will not approve of it and will direct the employees to stop. Good luck to you.

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  • Do I have to disclose that I sought legal advice on avvo or who gave it to me?

    I posted a question on avvo and received multiple responses to my inquiry. All answers stated the same course of action I should take against my former employer (an attorney) for my claim of unpaid wages. I even spoke to some of the attorneys wh...

    Patrick’s Answer

    At the present you would not be required to disclose this information to your employer. However, if you file a lawsuit you could be compelled to disclose this information through the discovery process. The reason is because, unlikely private conversations with a lawyer that you retain, posts here are not protected by the attorney client privilege. Posts here are public for anyone to read. Be mindful of this as you move forward and consider retaining a local attorney. Information provided on this Q & A forum is no substitute for that.

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  • I believe I was unfairly disqualified from drawing unemployment insurance. Should I hire an attorney to handle the appeal?

    I worked graveyard shift for 6 years which led to medical issues; I got a doctor's letter and requested a shift change. The HR Mgr at my employer asked if I'd like to move to another dept there; I said I'd rather have an equivalent position on a d...

    Patrick’s Answer

    It's almost never worth hiring a lawyer to do a UI appeal. You could wind up finding a job in a couple weeks, which would mean that only a few hundred dollars is at stake on your appeal. Attorney fees would vastly exceed that, which is why lawyers rarely get involved with EDD hearings.

    While there is certainly nothing wrong with appealing on these facts, you face a steep uphill battle because you quit your job. Having quit, you need to prove that your employer was purposefully delaying your accommodation and that your work conditions in the mean time were so unbearable that you had no reasonable alternative but to leave the job before the accommodation process could be completed.

    Good luck.

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