Legal Question in Employment Law in California
Wrongful Termination
I was the Store Human Resources Manager for 3yrs and 4mos with my previous employer - I was hired directly into this position. During my tenure, my job consisted entirely of traditional HR duties which included employee relations, staffing, payroll, disciplinary notices, attending job fairs, new hire orientation, etc. Last Friday I was told I must set aside a minimum of 3 hours EVERYDAY to cashier and to run the cashier department. I resisted because I was not hired to be a cashier, and this would be changing the scope and responsibilities of my job as HR Manager. I was sent home pending a decision. Today I was terminated and told that I ''voluntarily'' resigned. I most certainly did NOT resign, I was fired!!
IS THIS A WRONGFUL DISCHARGE?
3 Answers from Attorneys
Re: Wrongful Termination
First, you need to establish that, in fact, you did not voluntarily resign.
Although this may seem self evident to you, you really need to refer to your employee handbook, if one exists.
Oftentimes, these handbooks will contain provisions that address what happens if you fail to show up to work for a certain number of days.
Usually, if you fail to show up to work for "X" number of days, the employer can treat your unexplained/unexcused abscenses as a voluntary resignation.
Your post is not clear regarding the number of days you did not go in to work. And although it states that you were sent home, if, in fact you just went home of your own choice, this may make a difference.
Look at your handbook.
Re: Wrongful Termination
If your pay was not cut, it's going to be a hard sell to claim sufficient reduction in 'status' to justify a claim of forced termination. The company has the right to change duties within a reasonable range, especially if they indicate economic problems or reductions motivate it. If this wasn't a 'punitive' action, like making fun of you and trying to force you to quit, you may be required to comply. You should have requested time to consider, and talked with counsel before hardening your position. It may be possible for your attorney to leverage a claim of wrongful termination into a reasonable severance package, using the threat of litigation. Feel free to contact me if interested in doing so. Employment has been a specialty of my practice for over 20 years.
Re: Wrongful Termination
It's unclear from what you write. A salaried employee does not get overtime. An hourly employee does. An employer is not allowed to mis-classify employees by giving non-management work to managers for the purpose of avoiding the overtime payment. An employer who fires someone for complaining about such a scheme would be violating California Labor Code Section 98.6. You might also have an age discrimination claim if you are over 40. . . Feel free to contact at my private email if you wish to provide more details. . . .
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