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I feel that I was wrongfully suspended from my job. What are my rights.

El Cajon, CA |

I work at at restaurant and I also help with in the office. (5 days a week I do the restaurant deposits) We have petty cash (600.00) my manager told me that I shouldnt count it becuase she useses it for verious things the restaurant needs. Monday the 19th my manager told me that 230 was missing from petty cash. I told her that I had no idea where it could be. On thanksgiving I was told by our loss pervention guy that they dont I took it but misplaces it and they (the owner) was going to give me 2 options to make me pay it back or go our separate ways. Last Saturday I got a message saying I was suspended for a week. Im the only one who's been suspended. I am not the only one who has access to the money.

Attorney Answers 3

Posted

I agree that what has happened to you is grossly unfair. However, it is not unlawful. As an at will employee, you can be suspended or even fired for any reason or no reason. The reason can be stupid, irrational, unreasonable and unfair. It can be based on unsupported assumption or faulty facts. In short, as long as your employer is not acting unlawfully by treating you differently because you are a member of a protected class of people or because you have engaged in legally-protected conduct, it can do anything it wants to do regarding your job.

Sorry for the bad news. 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.

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Posted

I have a lot to say here and hope you read this answer all the way through.

First, it is absolutely illegal for the employer to require you to repay the money. California Labor Code sections 2800 and 2802 require an employer to indemnify an employee for expenses incurred on the job. I’ve pasted the two statutes below:

" 2800. An employer shall in all cases indemnify his employee for
losses caused by the employer’s want of ordinary care. "

" 2802. (a) An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful,
unless the employee, at the time of obeying the directions, believed
them to be unlawful. "

So if your employer wants to try to get you to cover this loss, it must sue you for it.

Second, if your employer fires you BECAUSE you refused to cover this loss out of your own pocket, you probably have a valid claim for wrongful termination in violation of public policy. A "public policy" is generally contained in a statute or regulation.

Third, if your employer fires you BECAUSE you resisted, opposed, or even questioned its effort to get you to cover this loss, it is also probably wrongful termination in violation of public policy because there is a whole body of law that says an employer may not discriminate or retaliate against an employee for protesting an unlawful payment practice.

Fourth, your employer has the legal right to fire you or suspend you because it THINKS you were responsible for the loss. It is not obligated to prove you did it or even to conduct an investigation. 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. However, your employer cannot suspend you BECAUSE you refused or resisted covering the loss with your own funds.

Fifth, keep a log of any comments, adverse actions or other funny business, related to this incident. If you get fired or something else happens, you will need this record and our memories start to fade very quickly. Log the instructions you've received about handling the deposits and log everything you can remember about this incident. Write down the date, time, what was said or done, who said or did it, and any witnesses; get it all as close to accurate as possible . Be sure to include any complaints you made to HR, your boss or anyone. Keep your log at HOME, not at work, because you never know what will disappear.

Sixth, if your employer is so willing to violate the law I quoted above, it is likely that it is violating other laws. For example, are you paid for the time you spend taking the deposits to the bank (if that is part of your job)? Are you paid at least the minimum wage for all the time you are at work and under the employer's control? Are you ALLOWED to take rest and meal breaks where you have no work obligations at all during the time of the break? Do you get paid overtime if you work more than 8 hours in one day or 40 hours in one week?

Finally . . . consider tackling this directly, professionally and respectfully. Understand the employer may have misunderstood events or even felt there was something wrong with your work but never told you. Ask if you’ve done something indicating you are a poor worker or if the employer thinks you violated a procedure. Explain you would never do anything against the employer's interest. Point out you were given this extra responsibility because of your good work record. Offer to help come up with a procedure to prevent this from happening again. Don't blame anyone else, but point out how many different people had access. See if this helps.

*** 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. ***

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1 lawyer agrees

Posted

Ms. Spencer has given you some terrific advice. I write only to add that, even though it would be illegal to suspend or fire you for complaining of these illegal acts, the practical issue is one of proof. So long as they believe you took the money, even if they're wrong, that would not be an illegal reason to fire you. So how do you prove one reason over another?

Part of the answer may lie in the option they gave you: pay us back or leave. That sounds pretty clearly like, if you had paid them back, you could stay. In other words, the reason you were suspended was because you didn't pay them back which, as Ms. Spencer pointed out, is illegal.

The important point to focus on is that what is *not* illegal is for them to think, even incorrectly, that you stole the money. What *is* illegal is for them to retaliate against you for refusing to pay the money back.

I also agree that this is probably not the only thing illegal that they're doing. Restaurants are notorious for violating wage and hour laws, and a good attorney like Ms. Spencer can probably help you fish some of those violations out.

Good luck with your legal matters.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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