After 14 years in my job, I was terminated with the reason given as absences. Let me add the course of events...
Single mother of two over the age of 40
Since 1996 I have had several counseling sessions which included concern over Managements perception that I exceeded their 3 unplanned absences in a quarter policy highlighted in their employee handbook. Of the absences they counted included time off for school appointments, childrens illnesses and a few occassions to stay with my father who was sick. Ca Labor code 230.7 & 233.
In August of last year, they wrote me up and changed my status from Exempt to Non Exempt to prevent having to pay for a full day's wage in the event there was an absence of less than a day. Every other person in my position is considered exempt and meets the qualifications. In the course of my job, I am required to spend some additional hours. I was told when asking if I should report the extra time worked on my time card, that "my VP" would kill me if I did." My probation ended at the end of December with no further action or discussion. I received a raise the first week of January. The 2nd week of January I requested PTO to attend the funeral of a close friend. My request was approved. I originally planned to work 2 hours in the morning and take PTO for the balance. I was responsible for preparing the slide show for the funeral and ran into technical problems the night before, causing me to call in the next morning and request the entire day as PTO. My manager said he would tell the boss. When I returned to work the next workday which happened to be a MOnday, my manager stated that he had spent the majority of Saturday (voluntary work day, if your desk was not current) discussing the fact that I had not called in the afternoon of the funeral nor had I showed up for the voluntary work day. He said he had never seen the boss so "angry" and would not repeat the things that he had said. I then went in to the boss to explain what had happened, he listened to my thought process ie...my desk was current, I was still classified as "non-exempt" and as such the company would have to pay me overtime, so it was apparent that there was no need to come in and get paid...when my work was current. He said he was very angry with me. Three days later, I was suspended without pay and received a letter the next day saying that my employment was terminated. There are other employees that have missed partial days for whatever reason and they have not been written up or put on probation because they "make their time up". I have been at my job for 14 years and am able to handle my work load without having to make up time. Ca lc 513 In addition, the last three people he fired in our department with the same job as myself, were women over 40. The replacements he hired for all of us were men. There is also a common difference in the pay compensation between the women and the men who perform the same job.

My questions are these-Am I correct in the Labor Codes that I believe have been broken? Could this be discrimination? Am considering filing a complaint with the DFEH and perhaps a civil suit. Any help would be appreciated. Thanks.

If you were legimately using more leave that was approved, that is a valif reason to take action against you. The only possible recourse would be if the absences for your children's illness or your father were FMLA qualifying, but that would not be the case for routine ailments. Whether you get your work caught up or not isn't the issue.

If calling in at the last minute isn't permitted or you must notify someone if you intend to not work the Saturday, then you can be held to those standards. Nothing you posted indicates that you were singled out because you are a woman or over 40. While it is somewhat suspicious that 3 women over 40 were let go and men hired in ther place, that in and of itself doesn't indicate discrimination. We have no idea what the other 2 women did to be fired, nor how others committing similar infractions have been treated. There also isn't any indication that the men were chosen because they were men, and not because they happened to be the best applicant.

Thank you for your reply. Maybe I wasn't completely clear...imagine that :) It is my impression the CA labor code 233 prevents an employer from prohibiting an employee for using a portion of their own sick leave to attend to a sick child or parent. As well as they cannot use that as a reason for termination or demotion etc.
My point being that they used protected absences as occurrences for disciplinary action. If those absences were not included, I would not have exceeded the allowable time off per quarter.

Also what about changing my status from exempt to non exempt, when the definition of my job falls clearly under the exempt qualifications for California. The other employees (14) with my same job title, also taking time off for children, appointments etc...are still classified as exempt.

A key point under Section 233 is that conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner. Thus, any conditions or restrictions on your use of sick leave for yourself (the three unplanned absences per quarter) would apply to your use of sick leave to take care of your father and your children.

There is no issue with making you non-exempt. An employer is free to make all employees non-exempt. Issues only arise when trying to make a non-exempt employee an exempt employee. Then you must meet the appropriate criteria.

The code you are looking for is actually 234. This code does prevent the employer from counting these absences in their absence control policy. However, your story makes it sound like your boss was angry about not calling in during the afternoon and not coming in on the voluntary work day. If so, this would not violate code 234. It may be harsh and unfair (especially if the day was supposed to be voluntary), but the termination would not be related to your protected absences.

As ElleMD said, the discrimination part is a bit more intriguing. I agree that it would require more proof in order to validate the claim.

Thanks for your reply...that makes sense. I also know for a fact that other people have exceeded 3 unplanned absences in a quarter whether for sickness or ill children or personal reasons. If they were not written up and I was, would this be considered unfair treatment or discrimination? There have been no problems with performance ever sited. I have always done whatever it takes to make sure my territory is current. :confused:

Unfair doesn't matter. It would only be ILLEGAL discrimination if you had valid and supportable evidence that you were fired/written up/demoted/whatever BECAUSE OF your membership in a group protected by law; race, religion, national origin etc.

It would only be discriminatory if it was because of your age or gender. If it was because you took more days than others, or consistently went over the 3 days or even just had a personality conflict, it would not be.

Thanks again to all... :) There are a host of problems with this termination and I really do believe they are discriminatory. After 14 years, I have kept most of the documentation and was going to file a complaint with the DFEH and then go from there. It is my understanding that they investigate the complaints if they feel it is warranted, meaning that they would be able to uncover all employees absences and if there was trend in singling out people. I know off the top of my head 3 fellow employees who exceeded the three unplanned absences per quarter. No disciplinary action was taken?

We also believe that some of the male counterparts exceed our salary compensation?

As far the as the exempt status, it seems that it is discriminatory because I am being paid only for the hours worked, except I was not allowed to put any overtime on my time sheet....and the other exempt employees get paid their salaries which would include being paid for 40 hours a week even if they only worked 35 or 45 etc.etc. I on the other hand would only get paid for 35 hours? :cool:

Do you understand what illegal discrimination is? It does NOT mean any time you are treated differently than other employees. It means ONLY that you are being treated differently than other employees FOR A REASON THAT IS PROHIBITED BY LAW.

You have not posted ANY indication anywhere in this thread to suggest that you are being illegally discriminated against.

I understand that. I am a single mother over 40 and have been terminated for absences that are protected by the law. I have a counterpart who is also a single mother, however under the age of 40 and she has missed more time away than I have in any single quarter. She has not been written up, put on non exempt status or in any other way reprimanded. Do you consider this discrimination protected by law?

She also "makes up her time", which is why I think she has not been reprimanded. I don't need to make up the time in order to stay current in my position.....she has more interruptions in her daily work than I do and I have the ability to manage my workflow a little smarter. The CA LC 513 states
An employer is
prohibited from encouraging or otherwise soliciting an employee to
request the employer's approval to take personal time off and make up
the work hours within the same week pursuant to this section.

You can file a complaint but the state nor the EEOC is going to go on a fishing expedition and investigate your former employer to see if anything turns up. You have to have some sort of proof that there is discrimination going on and not just speculation.

If you worked over 40 hours in a week and were classified as non-exempt, then your employer has to pay you OT for those hours. Otherwise they only have to pay for the hours you actually worked. They absolutely could prevent you from reaching the OT mark though. If those who were exempt only worked 35 hours, they could not be docked pay for the 5 they didn't work. It would be a violation to do so. If you were the only employee, man or woman, over 40 or under, that was treated this way, chances are highly against illegal discrimination. You admit that you wentover the 3 absences several times and had been counseled on it multiple times. That in and of itself is a valid reason to treat you differently than someone else who only went over once or twice, or that may have had absences that qualified under FMLA.


What makes you think the men were paid more? Even if they were, were you similarly situated? Same amount of experience, education, job duties, etc. Paying some men more than some women isn't illegal. It is only illegal if you are paying men more because they are men.

Do you understand what illegal discrimination is? It does NOT mean any time you are treated differently than other employees. It means ONLY that you are being treated differently than other employees FOR A REASON THAT IS PROHIBITED BY LAW.

You have not posted ANY indication anywhere in this thread to suggest that you are being illegally discriminated against.

It's like talking to a wall.

No, I don't consider it illegal discrimination to fire someone who is over 40 and misses time, and not fire someone who is under 40 and misses time but makes it up, as a matter of fact.

What would constitue sufficient proof?

When there is NO other differentiation between the two except age. In this case, the fact that she makes her time up and you don't is a sufficient LEGAl reason to treat the two differently.

Now, if she didn't make up the time, or if you did, and you were similarly situated employees with roughly the same length of time on the job and similar records with regards to previous discipline and similar skill sets and similar job duties so that there was NO distinction between the two of you except your ages, THEN I'd consider that possible age discrimination.

It's like talking to a wall.

This seemed to be a good place to get some information on topics, that yes I am ignorant about. Comments like these don't seem like a necessary addition to a thread where people are exchanging ideas or knowledge.

Thanks to everyone for your very informative feedback. Of course the story goes much deeper, but I did get my questions answered and "the law" clarified.

The one question I would still like clarified is what types of documents would constitute concrete proof of any activities that are protected by the law? :rolleyes:

You don't have to have proof of discrimination to file a claim of age discrimination with EEOC, the lead federal agency. However, you need to be able to indicate to EEOC some reasonable suspicion of discrimination.

EEOC doesn't enforce the CA code. So, whether your absences are protected under CA code will be totally irrelevant under the Age Discrimination in Employment Act or under Title VII, which prohibits employment discrimination because of sex.

The information you provided suggests that you were terminated because you didn't report to work as you said you would and apparently didn't show up or call in on a voluntary work day, not because of the number of hours or times you were absent. If that's true, the fact that another employee younger than 40 who missed more time than you wasn't fired, isn't important.

Should you file a charge with EEOC and EEOC decides to investigate your claim, it will ask your employer why you were fired. It would look at the reason given to see if it suggests sex or age discrimination. One way of doing that is to look at how the employer treated similarly situated, but male or younger, employees who did the same thing for which you were fired or did something similar.

So far, you haven't indicated that another employee did something similar to that for which you were terminated and was not terminated.

You don't have to have proof in the sense that you hand the EEOC a memo that states that they are paying you less because you are a woman and over 40 but you do have to have more to go on than, "I think my employer may be paying some of the men who worked there more".

I have to agree that I was a bit surprised by the harshness thrown at someone who obviously isn't well versed in HR details and is looking to learn more about her situation. It seems unfair to berate someone simply because our society has morphed "discrimination" into a general word that applies to any unfair situation. At least she is trying to learn and is not being argumentative.

Moving on to the topic, I would encourage you to speak with the California Department of Fair Employment and Housing. You can speak with a representative who will listen to your story and tell you if you have enough to warrant an investigation. They will let you know if you have a true age &/or gender discrimination claim.