I've been with my company for over a year, and my boss has only been there for a little less than that. She came in and fired everyone one by one, or made them quit. Someone was transferred because of herrassing me, and now I'm the only one left, and now she's after me. She treats me so badly, and yells at me. She looks for every little thing to get me in trouble for. She says things that are unprofessional and I've documented that. She put me on a 30 day get better plan, then verbal, then written. I had this terrible feeling I was going to get fired, and on that day I had a heart attack and went to the ER. They put me at bed rest for 7 days. Can my boss fire me still? I plan to talk to HR about hows shes been treating me. Any suggestions? contact EEOC?
Based on what you have summarized here, you don't presently have a claim for which EEOC would have responsibility (jurisdiction). EEOC has jurisdiction of claims of unlawful discrimination in employment. I am certain that you feel discriminated against, but not all discrimination is unlawful. And here, you have not stated any reason to consider the conduct of your supervisor as grounded in prohibited bias (examples: race religion, gender, etc.).
It is very common and not usually unlawful for a new owner or manager to be unimpressed with employees hired by previous owners or managers. Unless that is a sham covering up age discrimination,it is not unlawful for new manager or owners to want new attitudes, ideas, and approaches. Unfortunately, yelling and cursing and saying unprofessional things -- documented or not -- are not ordinarily unlawful. Bad management; bad manners; usually unproductive; these behaviors are very unwise and unworthy, but they are not usually against the law.
You may possibly qualify for FMLA leave based on your heart attack (a factual question of calculating your time in). Possibly you will be left with a disability. But even disability and medical leave law will not insulate an employee from termination for non-medical or disability reasons.
A final word: guard yourself and your words carefully in talking with HR. HR is not your resource for resolving disputes with your supervisor. HR is not a neutral broker. HR is management's resource for dealing with employment problems, including terminating problem employees.
My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.
I always tell my clients the "why" is more important than the "what" in employment law cases so you need to ask yourself WHY is this supervisor treating you this way? Generally speaking, to have a viable discrimination claim, you have to show your manager subjected you to an adverse employment action based on some legally protected characteristic you possess (e.g., race, ethnicity, sex, religion, disability, sexual orientation, age if over 40, etc.) or because you engaged in protected activity (e.g., protesting unlawful employer conduct). ("Adverse employment action" in employment law means demotion, suspension, or termination, something that hits you in your wallet or pocketbook).
Given that your boss has "fired everyone one by one, or made them quit," it's more likely that he or she is "cleaning house" rather than discriminating against you based on a protected characteristic. Further, based on the facts you provide, you haven't been subjected to an adverse employment action yet.
Finally, you mention you've been there "over a year." How many employees does your company have? If you've worked for your employer at last 1,250 hours in the past 12 months and your employer employs 50 or more persons, you are most likely eligible for California Family Rights Act ("CFRA") leave if you have a serious health condition, and it sounds like you do, and are under the care of a doctor or other health care provider. CFRA leave provides up to 12 work weeks off during during which time an employee's job is protected. You should talk to your HR department and find out if you are eligible for this type of leave or, if not, whether your employer offers any other type of medical leave.
ASsattorneys McCall and Padgett explained, 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 and following up on you comment to Mr. Padgett, consider a strategic solution rather than a legal one. If you have not (yet) been fired, try hard to prevent that; convincing an employer to reverse an action already taken is difficult.
Understand the boss may be a bully or perhaps control freak. Or maybe the employer feels there is something wrong with your work but never told you.
Consider tackling this directly, professionally and respectfully. Ask to speak with your boss privately. Ask if you’ve done something indicating you are a poor worker or if the employer thinks you were responsible for something problematic. 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 your boss’ or employer’s authority. Indicate you want to continue your working relationship, value your job and your boss’ guidance. 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. Don't say why you think he or she is doing this or did this; let your boss have a graceful way out.
Of course this could backfire, but if you approach your boss with respect (even if you don't feel it) and your boss overreacts, you can go to someone higher up next. If you do, use the same respectful approach. Your boss or 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 working people can do to improve their employment rights is to vote for candidates who have 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 the union already in place.
*** 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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