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Is this discrimination? I think so... California

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  • Is this discrimination? I think so... California

    I work at a small company. We have a total of 30 employees. Our HR manager is no longer here and lucky me...I was given the job! Here is my question....
    Our employee handbook clearly states our disciplinary policy: three write ups, suspension, THEN termination. The problem I am having is that the owner of the company will only follow this policy if she "likes" someone. For example, we write people up for excessive tardies, but she lets those she likes slide and those she doesn't like get suspended or fired. She treats everyone differently and I fear we are opening ourselves up for a lawsuit.

    Any advice would be greatly appreciated!

  • #2
    A company is not legally required to follow their own policy. The exception is if that policy involves a cba or employment contract or violation of law
    http://www.parentnook.com/forum/

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    • #3
      Does the handbook contain a disclaimer that the employer reserves the right to amend, change or disregard the handbook as circumstances indicate?
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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      • #4
        Originally posted by cbg View Post
        Does the handbook contain a disclaimer that the employer reserves the right to amend, change or disregard the handbook as circumstances indicate?
        There is no disclaimer in the handbook. The other thing I want to mention is that I am not talking about a very skilled employee over a mediocre one. It is purely based on the owner's feelings for said individual.
        Last edited by zangley; 11-18-2008, 01:03 PM.

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        • #5
          Without such a disclaimer there is more of a risk. Without such a disclaimer the possiblity exists that the handbook could be considered contractual.

          If you have a corporate counsel I suggest you run it past him.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            Thank you for your help. I don't have corporate counsel. Any suggestions? ALSO, I don't know if this makes a difference, but this is a DBA.

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            • #7
              No, it doesn't make a difference.

              Do you have a friend who is an attorney who might be willing to look at it for you?
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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              • #8
                "Illegal" discrimination is discrimination of a protected class. Where does that fit in here and what proof is there of it?
                http://www.parentnook.com/forum/

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                • #9
                  Originally posted by SedLex
                  Yup, that is plain discrimination. Discrimination exists when an employer treats an employee different from another. You should tell her that you would be opening the company for law suits. If she doesn't hear you out then it's up to her. What is important is that as an HR you have informed her of that.
                  The first two sentences above are true. However, not all discrimination is illegal. In fact, most of it is not. I ask the same question panther is asking. Where is the indication that the different treatment is because of a protected characteristic such as race, age, gender, religion, etc.?
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    The easy way to go about it.

                    Ask your boss if you can revise the handbook.

                    Add the disclaimer indicated by everyone else.

                    Also remember to add an "at will" disclaimer that pretty much states any employee can be fired for any reason.

                    Then hand out the revised handbook to all employees and indicate when the new handbook goes into effect (as of such and such date, etc.)

                    There, then you're covered.
                    I have the same problems with our handbook, and everyone here recommends getting a "canned" book instead of trying to write your own. I find "canned" books sometimes don't always fit the circumstances of our small business, but it can be good to use as a reference for the verbage.

                    Being a DBA does not usually matter. Our own business is a DBA. Our handbook is published in our corporate name DBS business name.

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                    • #11
                      In addition to the blanket disclaimer and at-will statement for the handbook, I would also suggest that the specific section about the progressive discipline policy should include a sentence that says that some steps mught be skipped in the even of a serious policy violation or misconduct. This allows you to skip to suspension without going thru the 3 write-ups.

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                      • #12
                        Wrong!

                        Originally posted by panther10758 View Post
                        A company is not legally required to follow their own policy. The exception is if that policy involves a cba or employment contract or violation of law

                        Quite often an employe policy, either oral, written or otherwise expressly communicated, operates as an exception to the employment at will doctrine.

                        Posters really ought not to give advice if they have no idea what they are talking about.

                        You, clearly, do not know what you are talking about.

                        Finals beckon

                        Eric

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                        • #13
                          Originally posted by sposito View Post
                          Posters really ought not to give advice if they have no idea what they are talking about.

                          You, clearly, do not know what you are talking about.

                          Finals beckon

                          Eric
                          That was totally innapropriate and uncalled for. You want to make personal attacks go try to start your flame wars some place else. If you disagree with someone, simply say you disagree and explain why.
                          The only thing spammers are good for is target practice.
                          No trees were destroyed in the sending of this message, but a bunch of electrons and phosphors have been a tad inconvenienced.

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                          • #14
                            Minus a cba or employment contract show me the law that forces an employer to follow its own policy! There are countless threads in which this is discusses always with same outcome.
                            http://www.parentnook.com/forum/

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                            • #15
                              Originally posted by panther10758 View Post
                              There are countless threads in which this is discusses always with same outcome.
                              Which is why I've stopped arguing with the ones who say so. It's gotten very old.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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