Did my former employer behave illegally?
January 31, 2010 9:08 PM   Subscribe

Did my former employer behave illegally?

There are two things in particular that happened, and I'd like to know if anything is actionable. I'm located in California.

1) Because most of the people in my position are students, every semester the owner of the business has a new schedule drawn up after asking the hours and availability everyone has. I was not taking any classes this semester and requested as many hours as possible. I was given 18 hours a week. I was upset because other employees who have been with the company a shorter time than me and who I am demonstrably more competent than (they say so themselves) were given more hours even than they wanted. I called the person who makes the schedule and asked her what gives, and I was told that the boss didn't want me to have more hours because, quote, I "have taken sick days and [the boss] doesn't think [I'm] reliable."
I called in sick one day because I had a fever of 103 degrees. This seemed wrong and so I wrote her an email specifically asking why she thought I was unreliable, and got back a very long, very specifically worded response that didn't answer my question but was a lot of fluff indicating that there are many factors that go into determining the schedule. Two weeks after this incident, the schedule was revised and my schedule was reduced to 12 hours a week. Despite the fact that the person who was given my hours didn't want them and offered them back, AND the person in the office who I assist said she'd rather have me than the other guy, they refused to give me the hours back. Knowing where I'm not welcome, I quit. Which brings me to ...

2) I quit that day, with no notice. In California, if you don't give notice, the employer has 72 hours to mail you your final check. It has now been 9 days since I quit and no paycheck has arrived. These usually arrive within the day or two after the pay period is over. Even if I was still employed, the pay period in which I was employed IS over and I still haven't received any payment.

I made an appointment with the department of fair housing and employment, but I'm not sure if retaliation for taking a sick day counts as discrimination. What laws, if any, have been broken, and who do I speak to about the situation? I really don't know if I can afford a lawyer or if it would be worth it to sue.
posted by tumbleweedjack to Work & Money (16 answers total) 3 users marked this as a favorite
Your better bet is to go to court - you will get damages for each day the check is late - far more satisfying, I would think.
posted by The Light Fantastic at 9:16 PM on January 31, 2010

Have you tried calling them and asking about the status of your check?
posted by Burhanistan at 9:16 PM on January 31, 2010

I'm not sure if retaliation for taking a sick day counts as discrimination.

It doesn't. First of all, you can't prove that they cut your hours because you took a sick day. Even if you could, it's not discrimination. It's cutting your hours because they think you're unreliable. They're allowed to do that unless you have a contract that says otherwise.

I quit that day, with no notice. In California, if you don't give notice, the employer has 72 hours to mail you your final check. It has now been 9 days since I quit and no paycheck has arrived.

Just call whoever does payroll at your former employer's and ask them where the check is before you go off and file some law suit.

I am not your lawyer, and this does not constitute legal advice.
posted by amro at 9:21 PM on January 31, 2010

No need for court- you can file a wage claim with the state.

(But yeah, you might want to just call and ask first. Could be an innocent oversight.)
posted by drjimmy11 at 9:22 PM on January 31, 2010

burhanistan: my understanding is that late final paychecks result in damages, and I need the money.

amro: I only can't prove it because I don't have it in writing, but I was told directly that the reason my hours were cut were because I took sick days.
posted by tumbleweedjack at 9:23 PM on January 31, 2010

As far as the schedule thing, they can do whatever they want- that's not illegal, it's just being an asshole on their part.

That's not really the point- the point is you need to get paid for the hours you worked.
posted by drjimmy11 at 9:25 PM on January 31, 2010

I'm with Burhanistan, you should try calling. I quit a job because of a psycho boss, but my final check didn't arrive in time. So I called, and it got cleared up.

This site may be useful, if you need help finding legal aid, Law Help California. Also, check with local law schools, they should have some sort of free or low cost advice for the public. Usually certain hours or a clinic.
posted by shinyshiny at 9:31 PM on January 31, 2010

IANAL and IANYL, however I have substantial experience as an employer in CA. There are two things you need to do. First, write a letter to your former employer stating that as of X days from the time you left your emplyment you have still not received your final check. State that, failing to receive that check within 10 days from their receipt of your letter will result in your taking all steps available to you. Mail it Certified, Return Receipt Requested. Keep the receipt when you get it back.

Next, go to the EDD and apply for benefits. Explain the circumstances of your leaving and ask them to treat your leaving as involuntary due to drastically reduced hours. They are likely to grant benefits and your employer is likely to challenge them. At the Administrative Law Judge's hearing explain what you have to us above and watch what happens next.

Lastly, if you never get that last check, take your employer to Small Claims Court. Show the judge a copy of your demand letter and the receipt from its delivery. State that you are due damages from the date of the termination of your employment to the date of the hearing. The judge may or may not agree in whole or in part.

All of the above assumes that there are no performance issues between you and your employer that you have not shared with us that your employer can bring up either at the EDD or Court.

Good luck.
posted by Old Geezer at 9:37 PM on January 31, 2010

From the California Department of Industrial Relations FAQ, it looks like it was on you to make arrangements and follow up within 72 hours.
The place of final wage payment for employees who quit without giving 72 hours prior notice and without specifically requesting that their final wages be mailed to them, is at the office of the employer within the county in which the work was performed. Labor Code Section 208 Therefore, it is imperative that an employee who quits without giving 72 hours prior notice return to the office of the employer 72 hours after quitting and request his or her final wage payment.
posted by stefanie at 9:39 PM on January 31, 2010

I'm glad I waited before I sent her an email! Thanks stefanie! (It still seems kind of ridiculous that they wouldn't mail me my final paycheck when I've gotten all my other ones by mail, but at least now I know what happened).

So I'm taking it the consensus is that my first issue isn't worth dealing with?
posted by tumbleweedjack at 9:55 PM on January 31, 2010

Don't be a dick, just call them and see what's going on. There's nothing wrong with getting rid of somebody because they're not reliable, and certainly nothing wrong with reducing their hours. You're not going to win a lawsuit, and purposefully avoiding contact with them is just going to make more trouble for yourself.
posted by floam at 9:55 PM on January 31, 2010 [4 favorites]

Yes. Your first issue is really not much of anything. Let it go.
posted by saradarlin at 11:17 PM on January 31, 2010

One need not give notice to quit a job. Employers do not (in my experience, under the laws of places I have lived) give advanced notice that they are about to fire or lay off an employee. In my experience, someone who is fired or laid off is notified and immediately given a very short amount of time to clear their office/desk and leave the building.

OP: It does not reflect immaturity or unreliability to quit without notice. It would reflect immaturity and unreliability if, every third shift assigned to you, you skipped work because you decided to take a nap instead. I don't think you're going to really get anywhere in terms of proving what happened, but I also don't know where this assessment of you as an unreliable or immature employee comes from.

Of course, when you work for someone who "has a long history of treating her employees like crap" do not be surprised when she treats you like crap. Do not be surprised if they do something hinky with your last paycheck--be prepared to follow up with a lawyer or advocacy organization.
posted by Meg_Murry at 6:05 AM on February 1, 2010

If you actually want legal advice go to an employment lawyer. You may have to pay a bit for the consultation, but you could ask for it to be waived. Tell them you would need a contingency fee arrangement. If you approach the lawyer with a clear and detailed chronology of what happened, and include all the docs you mentioned here, you will make a favorable impression.

Another option might be checking with your school to see if they have a lawyer for students to consult. Some schools have this service.
posted by yarly at 6:29 AM on February 1, 2010

There may be an off-chance that this could be covered under the federal Family and Medical Leave Act or the California version (California Family Rights Act)-- I doubt it because from your description it sounds unlikely that your sick day was because of a serious enough condition to qualify (I believe the federal definition involves being sick at least 3 days and/or being under the care of a doctor, and I don't know anything about the CA one.) There may also be other reasons why you wouldn't be covered (not being full-time, being a student, size of the business, etc, etc) so again, this is quite a stretch, but if you want to explore all your options you might want to look it up.

And obviously if your sick day is related in any way to a disability (and disability is defined very broadly under the ADA-- but not broadly enough to cover just having a fever one day!) you might have some rights there. Again, big stretch there, but you could look it up if you're really interested.
posted by EmilyClimbs at 4:22 PM on February 1, 2010

Just FYI:
Your one sick day isn't going to be covered under FMLA or CFRA unless you were an inpatient in the hospital that day. Otherwise, those two leave provisions generally don't kick in unless you're incapacitated for at least 3 days. To even be eligible for FMLA or CFRA leave, you have worked for your employer for at least 12 months total; have worked at least 1,250 hours in the 12 months immediately preceding your sick day; and work at a site with at least 50 employees within a 75-mile radius.
posted by pecanpies at 10:03 AM on February 2, 2010

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