Q: I was laid off due to covid 19 but I never got paid for the sick days I had asked for before the lay off
Never did I received a notice from my employer about my termination. All I got was a phone call from HR telling me that unfortunately they were letting me go. I worked there for 10 years, when covid 19 started I was was only working one or two days a week. On April 29 I got a message from HR saying they were getting ready to bring full staff into work and if I was ready to go return to work the following week, I replied “yes. On may 7th I got a called from HR telling me that unfortunately they had to let me go. The following day I went to get my personal stuff and I noticed the employees that I was training got called back. When I told the lady that laid me off how that made me feel, she tried denying it by saying those employees were also terminated and no longer working there.
The Shipping manager never liked me because of my nationality and made unpleasant comments and tried firing me many times before. I complained to HR many times too.
Was this a retaliatory discharge?
A: If you believe you can prove you were terminated because of your nationality then you would have a meritorious case. If you cannot prove that was the reason, then you probably have no legal claim to bring. Seniority over others is not something that gives you protection from layoff. It would be lawful for the employer to hire someone brand new while not bringing you back, as long as the reason you are being treated that way is not your membership in a protected class of people or because you engaged in some form of legally protected conduct.
Good luck to you.
A: I advise you to contact a lawyer with experience in wrongful discharge law and who knows how to handle discrimination cases. You also have a right to file your claim for unlawful discrimination with the Federal Equal Employment Opportunity Commission (EEOC) and the state of California's Department of Fair Employment and Housing (DFEH). File those claims as soon as possible. Be sure to prepare a narrative of your story in chronological order, as things happened, and keep all important documents which evidence your claims. Even though your employer may try to defend your dismissal as justified due to the corona virus, that defense may just be a pretext to otherwise explain your dismissal. If discrimination based on national origin was a cause of your dismissal, you may still be successful, even if there are other causes for your dismissal. Your personnel file should have relevant evidence which will help you. Ask for a copy of that from your former employer right away. By law, they have to provide that to you.
A: Very sorry to hear that you were treated that way. Short answer, not a "retaliatory" discharge, maybe a "discriminatory" discharge. You have multiple claims. First you may be entitled to be paid your accrued sick leave. Next, since you were a long term employee, and they retained new hires instead of you, your age (if over 40) could have been a factor in firing you. Older and longer term employees are usually paid more, but that is just a form of age discrimination. Finally, your comments about your nationality being a factor give rise to an issue about a different form of discrimination, Ethnicity or sometimes Ancestry discrimination- against you because of where you or your parents were from. Many employment attorneys can advise you on all of these matters. Before consulting one, you should gather your documents and get them scanned into a pdf format to send to the attorneys. All your employment records, the company policies re: sick leave accrual, and your paycheck stubs.
The reason this is not "retaliatory" is that term is used when you protest discrimination in violation of the FEHA or Title VII, and they fire you for protesting or opposing discrimination. That is the "retaliation." What you are talking about is a decision made because of "discrimination" based on your membership in a protected class of employees, based on your nationality, race, ethnicity or ancestry.
You can file a complaint with the DFEH, online and get a right to sue letter, but it is better to do that after you consult with an attorney. I have seen people make a mess of a good case by jumping the gun and not including all possible claims.
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