Salinas, CA asked in Employment Law for California

Q: What can I do if I get fired? I didn’t disclose to my employer of my learning disability.

I work in the state of California for a big retailer, I was hired back in October for a seasonal position. Recently there was a situation where I didn’t take my lunch meal. That day was a very busy day, we had a lot of customers and I was the only one at the front to assist. I lost track of time because of this and was focused on the customers. On the next day I had a talk with the GM and was told that I should change the times on my timesheet to say that I did take it even though I didn’t take my lunch , I didn’t not voluntarily decide to not take my lunch. Did I make the wrong decision to lie on my timesheet? Although the GM is right that no one prevented me from taking my lunch. I didn’t chose to voluntarily skip it. The next day the schedule is published , but I am not scheduled for the entire month. I have learning disabilities but I didn’t disclose that to my employer. I have a difficult time keeping track of time when focused on tasks. I need a reminder to keep me on track.

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2 Lawyer Answers
Neil Pedersen
Neil Pedersen
Answered
  • Westminster, CA
  • Licensed in California

A: The answer to your question is not as easy as you might imagine. There are many issues at play here.

First, the general rule is that your employer can discipline you and/or take your hours away for any reason or even no reason at all, unless you can prove the reason for that move is the employer's knowledge of your membership in a protected class of people, or because you engaged in some form of legally protected conduct.

Next, it is unlawful for an employer to not give you a reasonable opportunity to take a legally compliant meal period. A failure to do so can give you the right to receive a wage penalty of one hour of pay for each day you are not given a reasonable opportunity to take the meal period.

Regarding the reasonable opportunity requirement, an employer cannot just tell you to take a meal period but then give you no opportunity to take that period, such as by not providing you with someone to temporarily cover your work. However, if the employer has informed you that you take your meal period by a certain time and simply walk off the floor to do so, i.e., customers be damned, then you do that or face the consequences of disobeying a lawful (albeit rude) order. More would therefore need to be learned about your situation to know if anything like that occurred.

Regarding your disability, you cannot ask an employer to read your mind and then hold the employer for discriminating against you based on a disability that only you know you have. If you wish to be provided with reasonable accommodations for your disabling condition, the best way to do that is to get a doctor's note that describes the medical restrictions you have, and any reasonable accommodations the doctor suggests you need to perform the essential functions of your job. Provide that note to your employer. If your employer employs at least 5 employees, it will have a legal duty to provide you the accommodations you seek if they still allow you to perform the essential functions of your job as long as they do not create an undue hardship on the employer.

To get specific advice about your situation it would be wise for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

Most employment attorneys who practice this area of law offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.

Good luck to you.

Maurice Mandel II
Maurice Mandel II
Answered
  • Newport Beach, CA
  • Licensed in California

A: Wage and hour law is very complicated. Your employer committed a misdemeanor by asking you to falsify your time sheet, and for what? because they would have to pay you through lunch and pay you one hour's premium pay for working through the lunch period. Stupid behavior for a "major retailer". You should file a claim with the labor Commissioner, for 1 non payment of wages for the time spend working through lunch, and for the hour of premium pay AND for termination in retaliation for protesting illegal wage and hour practices, for which you would be entitled to recover wages during the time you are out of work because of this. Both claims are within the purview of the LC. I appreciate your comment about the LD but this really isn't the issue, anyone can be distracted from taking lunch due to busy days. This was for the BENEFIT OF THE EMPLOYER, not your personal benefit, the GM is just twisting words he knows have special meanings- you were prevented from taking lunch by the EMPLOYER because the store was understaffed and you had to be there to provide service to the customers. This was not your choice, it was doing your duty. If you had left the front to go to lunch and left it unattended, you would be fired.

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