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I was fired from work . My company said they watched a surveillance video of me drinking alcohol on 3-24-13, while at work.

Modesto, CA |

They said it was gross misconduct and fired me. I tried to explain what happened and they wouldn't listen. What happened was there was a white styrofoam cup on my desk, I didn't know what was in it, I took a drink realized it was alcohol and put it down ( apparently it was from another employee who was also fired). I don't drink on the job, this was the first time something like this happened. I was never tested for alcohol consumption. I worked on 3-24-13, 3-25-13, 3-26-13. 3-27 and 3-28 were my days off, I got sick with the flu and returned to work on 4-2-13. On 4-2-13 the company fired me saying it was against company policy. Why would they let me work 3 days after watching the video? Is there anything I can do?

Attorney Answers 3


  1. Your rights as an employee without a written contract or union affiliation are very limited. You could tell you employer in writing and (politely) ask them to reconsider. There have no duty to move within 3 days time or any other delay, and you could, in an at will state like California, have been fired for no reason.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.


  2. California is an at-will state, meaning that your company can fire you for almost any reason. Unless you have a contract saying otherwise, you are most likely an at-will employee. Once your company decides to fire you, there isn't much you can do, especially if you have already tried explaining and they refuse to listen.

    This response is general in nature and cannot be construed as legal advice, given that not all facts are known. Any information provided to you here is not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 408-289-1701 to schedule a free consultation.


  3. Unfortunately, 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. 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, think about a strategic solution instead. Consider tackling this directly, professionally and respectfully. Understand the company may have misunderstood events or perhaps felt there was something wrong with your work but never told you. Ask to speak with HR. Ask if you’ve done something indicating you are a poor worker or if the employer thinks you were responsible for something that happened. Maybe something was misinterpreted, though probably not. 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. Even if it doesn’t save your job, it may prevent a fight about unemployment and might get you a good job reference.

    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.

    I hope you can resolve your situation and wish you the best.

    twitter.com/MikaSpencer *** 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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