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Can Fired New Worker Take Legal Action Against Boss?

July 07, 1996

Q I went to work for a company as executive secretary to the CEO and vice president of sales.

Their expectations were outlined before I accepted the position. After two weeks on the job, I had nearly fulfilled them when I was called into the human resources office and terminated without any reason except that I was still in my one-month probation period. There had been no conflicts, no warnings.

I have never been fired before, and I have proof and references that my skills and attitude are top-notch. Do I have legal grounds against this employer?

--S.L., Fountain Valley

*

A In all likelihood, you were an at-will employee subject to termination with or without cause. Under California law, an at-will employee is not entitled to receive any warnings prior to termination even if his or her performance is perfect.

There is always a chance that you might not have been considered an at-will employee, however. It depends on whether any written or oral representations were made to you. Evaluate the employee handbook to see what rules were to be followed. If you are given guarantees that you would be fired only for cause, such promises should be followed.

Also evaluate if the employer falsely induced you to leave other employment to join this one. Even if you were an at-will employee, you might be able to recover for fraud if you can show that the employer lied.

Also, even if one is an at-will employee, it is illegal for an employer to discipline, terminate or demote the employee for discriminatory reasons or in retaliation for certain whistle-blower activity.

You should check the "reason behind the reason" for your termination. It doesn't really make sense that they would let you go if you are a perfect employee, as you say. You might ask some of your fellow employees to ask the boss the real reason why you were let go. You might ask a prospective employer to let you know the results of a reference check to your previous boss.

--Don D. Sessions

Employee rights attorney

Universal City

Union Wants to Expel Member

Q We have a co-worker who sounds a lot like A.R. from Fullerton in your June 9 column. He gripes about union membership but has no problem cashing his above-average, collectively bargained paycheck.

While he claims he's "just doing his job," his uncompensated extra effort allows the employer to utilize low-paid part-time help and deprives full-time employees of additional income opportunities. A lot of us feel that he would have a greater appreciation for his climb up the corporate ladder if he did it somewhere else, a little closer to the bottom of the pay scale.

How do we go about getting him expelled from the union for conduct that is detrimental to the overall good of the union membership?

--D.H., Riverside

*

A In order to discipline or expel a union member, the union first must have specific bylaws or rules that clearly prohibit the conduct in question. Rules against crossing picket lines are a common example. Conduct that is merely "detrimental to the overall good of the union membership" may not be sufficient for union discipline, particularly if it just amounts to an employee working harder than his counterparts.

Assuming there is enough of a basis for discipline in the union's rules or bylaws, the union member must be provided with a fair hearing before some type of internal review board before discipline is imposed.

But even if there is a decision to expel an individual from union membership, the union cannot force an employer to fire the individual. This is because even in "union shops," employees in the bargaining unit need not become or remain union members to keep their jobs. They need only pay union dues and initiation fees, and the union can force their firing only for their failure to pay such dues and fees--not for violating other union rules. Thus, even if your union were to expel the employee to whom you refer, he would still keep his job as long as he continued to satisfy his financial obligations to the union.

In fact, an employee could insulate himself from union discipline altogether simply by resigning his union membership. As long as he continued to pay union dues and fees, there would be nothing the union could do to remove him from his job.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Noncash Rewards Can Be Creative

Q I am a supervisor in a federal government agency. What would be a good reward system that could be used in civil service, where it is not possible to use money as a reward for showing initiative or in reaching performance goals?

--J.K., Anaheim

*

A There are a number of effective positive incentives that do not directly involve cash rewards. Supervisors simply need to be creative and think broadly.

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