Legal Question in Employment Law in California

I worked for my former employer for 2 and a half years. During the last year I was there, a large g roup of us attempted to organize a union. It never happened, and I ended up leaving the company voluntarily.

Fast forward to the 1st of August this year, I applied to the same position that I previously held at that company. I contacted my former supervisor, who also happens to be a good friend, and let him know I was interested in coming back, and could he find out what the status of my application was.

My friend contacted me and said that the management had pegged me as the one "driving the bus" on the union incident, and that they didn't want to bring me back for that reason.

I attempted to contact the HR to see what kind of story they were gonna tell me, but they still havent returned any of my calls. I then left a message with the assistant GM, and he left me a voicemail stating that there are no positions open, they are actually gonna do lay-offs, and good luck with my job search.

When I told my former supervisor about the asst GM's message, his reply to me was "wow". I said what, is the asst GM lying? He said "yeah, I just did and interview 2 days ago, and I havent heard anything about layoffs."

So I feel like this is retaliation/ discrimination, but what do I need to do to prove that? The company is also violating labor laws by making employees work beyond 10 hrs in a shift without breaks or lunches.


Asked on 8/30/12, 11:35 am

1 Answer from Attorneys
David Sarnoff Sarnoff + Sarnoff

California Labor Code section 923 prohibits any employer from taking action against an employee due to that employee's union activity, which includes an attempt to form a union. This is a clear public policy in the state of California.

My only concern is that you were not an employee at the time of the retaliatory conduct, and the law may not allow a "failure to hire" claim based on attempts at unionization, which would fall under a potential public policy claim. Since you had already voluntarily resigned your position and were looking to return, making a claim based on the public policy of Labor Code section 923 would be difficult.

As for the other issue regarding meal and rest breaks, all non-exempt employees are entitled to such breaks by law. Also, if you were not being paid overtime rates for each hour you worked beyond 8 hours in a day, you may be entitled to additional overtime payments.

If you would like more information, feel free to visit our firm's website at www.sarnofflaw.com. There you will find a Confidential Online Case Evaluation Questionnaire that you can complete. This will give us further insight into your potential claims and help us better evaluate your situation.

Read more
Answered on 8/30/12, 1:30 pm


Related Questions & Answers

More Labor and Employment Law questions and answers in California