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Thread: Retaliatory layoff - California

  1. #1
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    Default Retaliatory layoff - California

    I received a layoff notice yesterday after 5 years with my department and 10 with the organization. They told me my classification is being eliminated and a new title will perform my functions. Others in my situation are being reclassified to the new title and I haven't heard of anyone else being laid off. My performance reviews have always been good and I've never been formally disciplined in in any way. I have 30 days to find a new job in order to stay with the organization and retain my retirement plan (if I have a break in service I lose my current plan which is much better than what they offer new employees).

    In October 2015 I filed a complaint against the VP for retaliation for taking a protected leave, disability discrimination and sexual harassment. Since I work in HR, I filed the complaint through the office of ethics and compliance. They didn't find the complaint to "rise to the level of improper governmental activity" and it was dropped. They did say that the issues would be addressed with the VP since the behavior was not appropriate for the VP of HR in a large organization (you think?). His behavior changed markedly towards me after he was spoken to. He stopped addressing me unless absolutely necessary and would do this fake nice thing that was really transparent. I think the moment his boss spoke with him is when he started devising a plan to get rid of me.

    I spoke to an attorney yesterday who thinks I have a case but is concerned about the passage of time between the complaint and the layoff. These people know what they are doing and waited patiently to avoid the appearance of retaliation. They were also able to take advantage of some restructuring resulting from a recent audit. These are the perfect opportunities to get rid of people you don't like.

    I have preferential rehire rights but only for the same classification and the same department which does me no good since they are eliminating that classification. I was thinking of appealing for a longer notice period and preferential rehire for the whole organization, not just my department. I plan to actively start applying to positions on Monday.

    Is there anything else I should be aware of?

  2. #2
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    Apply for the replacement position and see if you get the job. Until you do not, technically you have not been damaged. The employer can say it was your fault for not applying. Not my area of expertise, but since a bunch of people are effected, it weakens your "they are picking on me because ..." claim.

    Past that, sue the employer or do not sue the employer, but DO NOT TALK TO OTHER EMPLOYEES about this. Of course they are going to rat you out. Do not make the employer's case for them.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    Thanks DAW. They may wait until after I am separated to post the new position, which would put me in a difficult situation with my service credit and retirement. But I agree that being denied the job will give me more leverage. It will be difficult, but I have to do it.

    I can't believe they had the nerve to tell me it has nothing to do with my performance, yet they are pretty much making it impossible for me to find another job in the department.

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    Does it help my case if others are not laid off? It appears more like I'm being targeted. Also, I just noticed that two positions were posted on Friday that were previously in my classification. One position is vacant and the other position is filled (she is simply being reclassified into the position, not laid off like me).

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    Termination law is strange. The starting point is employment-at-will, which basically says that either side can end the relationship, no harm, no foul. You have to find a very specific law that says otherwise being violated, and even then, you have to prove that the termination is for a protected reason.

    You already have a lawyer and I am not going to second guess their advice. Just avoid taking any actions which hurt your case. Talking to fellow employees hurts your case.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    Thanks DAW. I am not an at-will employee. They probably would have booted me sooner if I was. It would have been much harder to fire me for performance because there is a long progressive discipline process. If they lay off for restructuring, it is much simpler.

    I think the first thing I will do is appeal to have my notice period extended. The hiring process is very slow where I work and 30 days just isn't enough. I want to stay with my organization and if I have a break in service my retirement will be affected. I'm going to focus all my efforts into finding a new job for now and will resort to legal action if I need to. The lawyers in my org are very good, so that concerns me.

    I think it looks suspicious that they are only eliminating three positions in a department of 200. One of the positions is vacant and the other person affected is guaranteed to get the new "repurposed" position. I doubt she even got a layoff letter or a talk. I'm sure her boss just told her they had to go through this process as a formality. My org is very corrupt.

    I've told a few people at work that I've been laid off but I haven't talked about fighting it.

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    You are an at will employee unless you have a legally binding and enforceable contract that expressly says you're not. Do you? Because if you do, that could have an effect on the answers you are getting both here and elsewhere.

    There being a progressive discipline process is NOT, in and of itself, enough to void the presumption of at-will.
    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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    I'm not sure. All I know is that I've always been told that managers are at-will and support staff are not. It doesn't really matter though since this is a layoff and anybody can be laid off for downsizing and restructuring reasons. I may be SOL.

    The fact that so few people are being laid off (3 out of 200) is what I'm taking issue with. I would not put it past them to include the other two positions to avoid the appearance of targeting me. That's how much they want to get rid of me because of my complaint. I have a disability which sometimes limits me, but other than that I am a very good employee. I've always received good evaluations. They would not be doing this if I didn't complain.

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    I don't know who's been telling you that managers are at will and support staff are not, but whoever it is either doesn't know what is meant by at-will or are lying in their teeth. I can conceive of situations where the opposite might be true, but what you're being told is essentially nonsense.

    The reason I asked if you had a contract is that a contract CAN void at-will. In that case, the contract would outline the circumstances under which you could be let go. If those circumstances were violated, you'd have a much stronger case than you do now.

    Don't get me wrong, I'm not disputing that you are probably being let go because of the complaint. But as I told you on the other site, I am concerned about the length of time they waited between the complaint and the termination. I think that's going to make it much harder to prove a connection, and without that connection, you don't have a legal case to make.
    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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    Thanks cbg. I'm hoping I don't need to go the legal route. I just want to be given a chance in another job. If that falls through, I may be able to make a case that I've been blacklisted. Hopefully they will just be happy to be rid of me and let me work in another department in peace.

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    Are you public sector or union? That is the only way I can think of that you would have a "right" to reinstatement and staff is not at-will but management is.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Hi Elle. Yes, I work for a public university. I am not part of a union.

    I have elected preferential rehire rights in lieu of severance and I also requested an extension of my layoff notice period from 30 days to 60 days. Where I work 30 days isn't long enough to find a job. If they deny me the extra time, I will appeal to the boss above the VP.

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    Public sector is a different animal. Whatever rights you are entitled to are governed largely by state regulations specific to your industry. Technically, your employer could not be sued for violating federal laws, unless they agree to be. Your state though, has its own versions of the laws and they differ greatly from federal. I can virtually guarantee that lay offs and notice periods are set by regulation for you. Being a public employer, I would not hold my breath that they can/will be all that flexible. Normally, employees are not entitled to notice or reinstatement of any kind. Being public sector, those things are more common but those are usually set policies that are the same for everyone. 30 days to find another job in the organization is pretty standard. Limiting recall rights to the same department or pay grade is also very common.

    If they are reorganizing your division and eliminating your classification, it is going to be almost impossible, absent an outright admission, to prove that your compliant is the reason. Organizations do not just wait a year and a half, then restructure to get rid of one employee. That goes double when there was no finding from the investigation and the changes were recommended by an outside audit. Presumably whomever did the audit doesn't even know you, or anything about your complaints in 2015.

    It isn't clear what this VP actually did that you find retaliatory. Limiting contact and having to "act" nicely around you are natural consequences of making an allegation. It is not retaliation. Firing you because you made a complaint would be, but a year and a half after an unsupported investigation which resulted in no adverse action, and given the entire department was restructured after an audit, it is awfully hard to make a case for illegal retaliation. I'm sure the guy isn't sad to see you go, but that isn't illegal.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Thanks for the honest feedback Elle. The department has 200 employees and only three positions were eliminated. Only one is an actual layoff and that's me. One position is vacant and the other is a contract position so her contract would have ended anyway. I'm sure she has been guaranteed the new "repurposed" position.

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    New development: My job was posted on 2/8 and the duties are identical to what I do. The title and classification are different, but that's all.

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    Apply for the job.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    Thanks DAW. I applied on Monday. It will be interesting to see if they interview me.

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