I was just brought into HR and told a co-worker is making accusations that I made racial and harassing statements to them. While this co-worker and I have not always got along I am not guilty of anything even remotely like what I am being accused of. Because my work has a zero tolerance policy I am afraid they may fire me based on these false accusations. What can I do?
If I cannot do anything to protect myself against my employer because of the "at will employment law", what are my rights regarding a defamation of character suit against the employee making the false accusations?
Employment / Labor Attorney
There is nothing worse than being accused of something you didn't do. Unfortunately, unless you are a government employee or are a union member in the private sector, employers have no legal obligation to provide due process or have just cause to terminate. Most private employers may terminate at will.
About the only thing you can do, at this point, is to indicate your willingness to be fully cooperative and provide as much information as you can to try to show you did not say or do things things you are accused of. Things not to do include taking it upon yourself to talk to the accuser or any other employees about the accusations.
If you are terminated, and you feel you need advice or legal assistance to help understand your rights, consult with an employment law attorney in your area.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
Employment / Labor Attorney
As Mr. Kirschbaum said, your rights are very limited. Employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.
Now with a better understanding of your limited legal rights, consider a strategic solution instead. If you have not (yet) been fired, try hard to prevent that; convincing an employer to reverse an action already taken is difficult.
Consider tackling this directly, professionally and respectfully.
Understand the company may have misunderstood events, perhaps felt there was something wrong with your work but never told you. Ask to speak with HR. Maybe something was misinterpreted. But if so, you can explain your side. More likely you will never know what is really going on. However, a mature conversation may change the way the employer treats you and may cause a change in the decision.
Whatever you do, don't challenge the employer’s authority. Indicate you want to continue your working relationship and value your job. Explain you care about doing a good job. Mention your good work record if you have one. Explain you would never intentionally do anything against the company's or your boss' interest.
Do not blame anyone else even if you believe someone deserves it; this cannot help you. Only talk about yourself, that you want to do a good job, and you regret the situation. Ask what you can do to improve things for the future. Don't give anyone a reason to get angry.
The company may see you more favorably after this.
I know it's annoying to have to do this when you didn't do anything wrong, but remember, an employer doesn't need a reason to fire you. And as we all know, the current economy is tough and jobs are hard to come by.
Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.
By the way, if you were "just brought in" I hope you are not using your employer's computer or your time on the clock for sending this message. Always use your own time and your own equipment for non-work purposes. You have no right to privacy in any work-provided technology, even if you use your own e-mail address, the messages go through the work server and are not private.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Employment / Labor Attorney
As to your question about defamation, there is a cause of action for defamation that if proved, you can seek damages against this co-worker if you face financial or emotional injuries. Stated simply, to prove defamation you need to prove that the defendant communicated untrue facts to another that hurt your reputation with another. If the facts you state are accurate, you probably have a claim. However, you have a couple of challenges if you wish to proceed.
First, proving the statements made to your employer were untrue will be very hard. If the co-worker is claiming that the racial and harassing statements were made in private, it is a you versus them situation, making it very difficult for you as the plaintiff to carry your burden of proof that the statements were untrue.
Second, suing an individual is usually not financially lucrative. If you were to find a contingency attorney that would take this case, I would be surprised. Far too many hours and costs would have to be expended to bring your case to trial to make taking a case against an individual with limited assets a good business decision.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Employment / Labor Attorney
Unfortunately, in a workplace investigation, credibility can be a big issue. Who will the employer believe?
You can ask the employer to interview other co-workers who know that your accuser has a motive to make up the accusations against you
You may also suggest alternatives to termination, such as a transfer or additional training, if the employer does not believe you.
Employers must take these claims seriously and sometimes employers err on the side of caution.
David A. Mallen offers answers on Avvo as a public service, for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding the facts of your legal claim or the time limits for filing your claim, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen, offer confidential, no-risk legal consultations at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.