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Q: Recently, I was called to the personnel department regarding a complaint by an employee who said that I made a derogatory remark about her car. I was told by personnel that this constitutes abusive verbal behavior and will be documented, and if this continues I will be terminated.
Is this a basis for being fired? What action can I take, if any, if this should occur? Haven't my rights to freedom of speech been violated?
I have worked for this company for 10 years and received numerous awards for exemplary work performance. I am deeply concerned that this documentation will affect my salary reviews.
A: The proliferation of lawsuits for sexual and other forms of harassment has caused many employers to adopt strict policies prohibiting harassment of any nature in the workplace. The law is still very much in a state of flux concerning just what kinds of derogatory remarks and comments in the workplace can result in liability for the employer, and the courts heretofore have been reluctant to apply the First Amendment's guarantee of freedom of speech to the workplace. Ironically, under present interpretations of the law, you can shout obscenities about your country but not about your co-worker.
You do not say what it was that you said about your co-worker's car, but apparently it upset her enough to complain. Your best course of action would be to avoid making further derogatory comments to or about other employees in the future.
Even if you meant your comment as a joke, not everyone is likely to share your sense of humor. At any rate, any further derogatory comments on your part that result in employee complaints could very well result in your termination.
Employers have the right to require their employees to show one another courtesy and respect, and a failure to do so on your part will not be excused by a prior record of exemplary performance.
--James J. McDonald Jr., attorney, Fisher & Phillips, labor law instructor, UC Irvine
There Is Time Limit on Discrimination Claims
Q: One year ago, I complained about race discrimination to the human resources department of my company, but they kept quiet and did not do anything. Now, I want to file charges with the Equal Employment Opportunity Commission.
Is it too late? If so, can I file a complaint with the company alleging another form of discrimination, such as age or sex, and then complain to the EEOC?
A: It is probably too late to do anything. Both California and federal law impose statutes of limitation on the filing of claims of discrimination. California law requires that an employee must file a discrimination claim with the Department of Fair Employment and Housing within one year of the alleged discrimination. Federal law requires that such a complaint be filed with the EEOC within 240 days of the alleged discrimination.
However, there are two exceptions that may help you out. First, if the discrimination is of a continuing nature, then the statute of limitations may he extended if additional discriminatory acts occur. Second, if your employer made a promise to settle your complaint with you and then reneged, the statute may be extended.
Regarding your question about alleging another form of discrimination, it is a very bad idea to file claims with any agency that are untrue merely because the time has expired to file a claim in which you do believe. A person who knowingly files untrue claims can be sued for malicious prosecution by the person against whom he has made the charges. In addition, in proceedings brought under federal and state law pertaining to employment discrimination, an employer that successfully defends itself against a charge may be able to recover its attorneys fees from the complaining party.
--Michael A. Hood, employment law attorney, Paul, Hastings, Janofsky & Walker
No Unemployment Pay for Lifestyle Move
Q: I have been employed in the aerospace industry for 20 years, 10 years with my current employer. My wife is a pharmacist. We are both fed up with Southern California and have put the wheels in motion to move to rural America, probably Washington state or Oregon.
If we both quit our jobs and move to a different state, can we expect to be able to collect unemployment while we search for new jobs? Or can at least one of us claim unemployment as the spouse who must/will follow the other in relocation?--M.R., Venice
A: To qualify for unemployment benefits, a person must prove that he or she had "compelling reasons" for quitting voluntarily. A decision to relocate to an area of the country that's more desirable is not considered "compelling" under the law.
An employee who quits to accompany a spouse to a new location has a "compelling" reason--preserving marital unity--and unemployment benefits normally would be paid. The person applying for the benefits must show that the spouse decided to move. But the state also will consider whether the applicant could have commuted to work from the new residence, or whether the employer might have jobs at the new location that would have made a transfer possible.
If your decision to leave your jobs is mutual, you both are likely to be disqualified from unemployment benefits unless there are other compelling reasons, such as receiving medical advice to quit, a significant change in job duties or a violation of rights by your employer.
--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group
The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.