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Probably NOT A Legal Example of Retaliation. Could Use Advice Anyway.

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  • Probably NOT A Legal Example of Retaliation. Could Use Advice Anyway.

    I work at a small convenience store, with a deli, in Missouri as a third shift manager/cashier/go to person/trainer. There is no HR, only the store manager and the owner. As a night shift manager I am responsible for ensuring that the janitor is performing his/her duties. A few months ago my predecessor hired a man to fill the janitorial position. This man is engaged to the second shift manager. I had a bad feeling about this turn of events from the beginning. I was afraid that if a problem developed and I had to handle it, that there would be some kind of consequence/retaliation from the second shift manager. Needless to say, there were several issues that presented themselves. He didn't perform his duties, or if he did perform them, the results were unsatisfactory (to be polite).
    During his second month of employment I noticed that he was, "padding his timesheet," or writing down a time later than when he left. At first he added like 15 minutes to his time. I let it slide because I wasn't keeping a very close eye on him. After a couple of weeks of monitoring this behavior I noticed that he'd add 30 minutes to an hour (at this point I had all ready started keeping a record of his actual time in and actual time out). I brought this to the store manager's attention, but I was told to talk the employee about it. I told the store manager about my fear of retaliation if I brought this up. The store manager said that he would take care of it, but to keep an eye on this employee's time sheet anyway. I did as instructed and noticed that the employee was adding anywhere from an 1.5 hours to 2 hours to his time. I monitored this for about two weeks. For my own protection, and since the store manager's conversation with the employee didn't cause an improvement, I wrote a letter to the store manager. In the letter I mentioned specific times and dates (since we do have cameras). A couple of weeks prior to this, the store was sold and we had new owners. For some reason the new owners opened the envelope (which was sealed and addressed to the store manager), read what I had said, and became very upset. Being new to the store they had another employee call the store manager (the employee on duty just happened to be best friends with the janitor and the second shift manager), demanding to know what was going on. By the time all was said and done, every employee in the store knew what I wrote and most of the customers present heard about it too.
    The next Monday morning the store manager berated me in front of everyone for writing the note. He said that I had needlessly upset the store owners. I told the store manager that if I was an owner of a store and found out that one of my employees was committing an act of fraud, I'd be upset about it too. Furthermore, I told him that if I was an owner who discovered that this issue had been addressed before, I'd want to know why nothing had been done about it before. I also told the store manager that I wanted documentation of my complaint since I was pretty sure there would be some kind of reprisal heading my way.
    For the most part, the reprisals have been petty. Examples of petty would be small and deliberate inaccuricies I find in my paperwork, numbers written down backwards, cash drawers off by a few dollars, lottery numbers copied down incorrectly, messy store, coffee burning, etc... I know these are all little things meant to make me look like I'm being petty if I bring them to the store manager's attention. As of late, things have been escalating. The janitor (second shift manager's finacee) quit, and we hired on a new janitor. Being the conscientious guy he is, he showed up early (during second shift). I found out that his orientation consisted of showing him how to fill out his time sheet, and listening to the second shift manager and second shift deli person (who is friends with second shift manager and our previous janitor) make degrading remarks about me. It sucks that these two employees are trying to undermine me but the new guy didn't fall for it, so it's all good. The latest thing, that's been going on for a month now, is this particular deli employee needs to wait until at least 10:00 p.m. to finish the dishes from the deli (which closes at 8:00 p.m.). The other deli employees who close on Monday, Wednesday, and Friday night are long gone by the time I show up. The second shift manager and this deli employee both know that I need the sinks to perform some of my duties when I come in at 10:00 p.m., yet they wait. I have pointed this discrepancy out to them, and I've been ignored. I've gone to the store manager about this issue, and the issue of the second shift manager not performing her duties, and I've been ignored.
    I'll be honest with you. I have more than $2000.00 in medical bills, with more on the way. I cannot afford to leave right now, without finding another job first, and that's been difficult with my newly discovered medical condition. I could go directly to the owner with these issues, but I truly believe this will only make matters worse for me. I need to know what I can do to legally cover my butt. PLEASE HELP!!!

  • #2
    You are correct; nothing you have described constitutes illegal retaliation.

    Since it appears that the new owners do not have any intention of addressing the situation, and since they are not legally required to do so, your best bet is to look for other employment and quit when you find it. Not all health insurance plans exclude pre-existing conditions, and those that do can legally only do so if there has been a gap in your coverage for 63 days or longer. If you have been consistantly covered for 12 months or more, then your medical condition will still be covered by your new insurance. I grant you, it does not address the issue of FMLA, which you will not be eligible for until you have been in the new position for 12 months, but your alternative is remaining where you are.
    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.


    • #3
      Actually health insurance is not an issue since I have not had coverage in the over a year, and my condition would not be considered pre-existing by the HMO's since I haven't been covered in so long.
      The actual issue with the health is that I'm not at 100%, yet. I was diagnosed with Grave's disease about 6 months ago, I probably had it for about a year prior to diagnosis. I'm through with the radioiodine treatment that killed my thyroid, but my thyroid level dropped faster than my endocrinologist had intended. Good news is the treatment worked and we shouldn't have to fiddle with meds too much to find the right dose. Bad news is that I'm going to feel lousy until we get my meds right. My absences have been tolerated, and most of my co-workers have actually helped to cover my shift. While thyroid disease is considered a disability because of the severity of the symptoms, it does make job hunting interesting. I can't be denied employment at a company for this, but the company can find another legal reason to deny my employment.
      I had an opportunity for some kind of recourse in the past, but I didn't act on it. For quite some time I was experiencing heart palpitations, dizziness, nausea, serious muscle fatigue, and some fainting spells. There were days I could not drive to work, much less perform my duties. My endocrinologist and I worked together to make sure that the store manager understood my condition, in the hopes that my work load would be lightened. My store manager wanted me at work, and pressured me constantly to show up for my 12 hour shifts. The DOL said that he could not fire me for the absences related to my condition, and the store manager had to make a reasonable effort to allow for my condition. OSHA stated that since most of my duties would/could make the above symptoms worse, that I should not be forced to perform them. I was also told that if I was pressured or coerced into performing these duties, I could successfully file a complaint since I had documentation clearly showing that certain duties were unsafe for me to perform. We won't talk about what OSHA said could happen to my employer if I fainted, or was seriously injured, while performing certain duties because I was pressured/coerced into performing them. Luckily for my employer, I didn't file a complaint and I didn't faint.
      The store owner is pretty oblivious to everything, except what the store manager wants him to know. We are discouraged from speaking to the store owner, as demonstrated in my original post. The owner has absolutely no discretion in these matters. The store manager does hear about these issues and does proceed to dress down the employee who brought these issues to the store owner's attention.
      As it stands, I'm stuck where I'm at until I can find other employment. I have payment arrangements to keep, and one of the hospitals has no problem with taking a person into court for breaking the payment arrangement. If I'm unemployed and can't pay for a hospital bill, I sure can't affort to hire an attorney. Legal aid is not really a good option in this state. So I'm pretty much screwed.
      Thanks anyway.


      • #4
        to Ryanna

        You sound somewhat like me in that you write a lot..and feel alot. I have in the past been in situations where I wanted to do the right thing, and it backfired.

        If I were you, I would quietly look for another position and while you can note any indiscretions from other workers....I would concentrate on being the best employee you can be.

        Good luck with the Graves disease. You should be able to find an endocrinologist who can regulate you.

        Workwise, if I were you, I would stay quiet. People talk. People gossip. There are politics everywhere. Try to ignore it to protect yourself.


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