In May of 2010 I was terminated for failing to meet in a job requirement called adherence. Adherence in our call center measures the time you are available on the phones to answer calls. If you are out sick or on an intermittent leave such as FMLA or CFRA, the hours you miss are deducted from the total number of hours you could have worked in that month. As a result, the 40 minute leeway window you would normally get in our circumstance, is reduced if a partial day absence, etc.
This is a domestic partnership California CFRA qualified leave.
In April, 2010 we renewed our leave by providing the necessary certification. The leaves are administered and approved (as of late 2009) by an absence management company outside of the employer. All leaves were marked approved. The need to a lot of intermittent leave was needed in April and May 2010. My partner is a lifelong type 2 diabetic. He has permanent issues as a result, also kidney failure, multiple organ transplants, and issues involving melanoma and arterial blockages that were remedied before the transplants.
After the major portion of my issue here, there is one final important point at the immediately afterward:
In April, for the first time in years I started failing to meet in the adherence requirement. It was not simply a little below, but unrecoverable. I was not aware that I had not met until I complained about my adherence numbers again in May 2010. At that point, I was informed I actually had not met the aderence requirement in April, and was failing in May 2010 also. (I was terminated May 21, 2010 and I believe those stats could not be used as I could have possible recovered by the end of May). I asked my manager if my times taken off the phones and CFRA was properly documented in the tracking system. She said as far as she could tell, yes. She also said by taking CFRA, it squeezed the overall time I would have had in a month to meet because by taking leave, I had less hours in the month to meet and would have had to be near perfect in time on/off phones to meet. To me this was an adverse action due to CFRA. I continued to complain, eventually for one week's worth of stats, she had them checked, found an error that they would not disclose to me, and that week I had met anyway - so their methods are suspect anyway.
In May after my manager disclosed to me I failed to meet adhrence in April 2010, the HR manager called me upstairs for a private meeting. She said it looked bad, what was going on, I never had an issue before and that she liked me and wanted to see if there was any way to keep my job. I told her my suspicions. She had to go to corporate for a few days, which turned out to be a meeting to finalize a layoff list in my department that ultimately provided severance for years worked and additional for signing a waiver to sue for age discrimination.... She said she would see if there was "any way she could save my job". She was to return May 21, 2010. Again I told her to check stats and CFRA and insisted I was not out of adhrence!
Note: I was on a final warning for quality and call handle time for 3 infractions over the past 12 months. Never for adhrence.
The rest of the story is that they claimed the stats were correct, and that I was terminated for failing to meet in ADHERENCE.
This case has been accepted by the Dept. Fair Employment & Housing after an interview. They advised me to try an negotiate since it appeared my rights may have been violated. I asked for my job back. Due to my other warnings, they stated they could not (even though the HR Manager wanted to save my job)? I asked then for the severance pay + change in status from "fired" to "lay off" and they said sorry - we did nothing wrong.
My point is that if I had been at work just a couple of days more in April and not on leave, I could very well have met in adherence. If I had known this would have happened, I may have forgone some of the care at home for my partner anyway in order to keep my job and keep us secure. It would have been a hard choice, but an obvious one in hindsight. I am 48 and it's not easy finding another job when you're fired.
The last issue that affected the adherence was brought out in one of the letters from HR to me during my "negotiations". It appears that they also stopped counting hours the early shift worked on another phone line due to an issue with handle times transferring callers to the outsource office in Guatemala. They never told us this was happening, and the issue was not adherence, but call handle times. Removing the hours for that had no bearing on our issue - but it did even take away more hours in the pool I to meet in my adherence. Coupled with the CFRA, this is why I didnt meet obviously. There is also an issue after reading a response letter from HR that they stated in less than 2 weeks, I was out of adherence 9 hours, which was not correct - I would stake my life on it.
Do we have a case honestly? Is the DFEH going to be able to help us? I also have a consult with a lawyer Tuesday if it doesnt fall through, but I'm up in the middle of the night worrying about this. I had to cash out a meager 401K just to make it. They also mentioned to one of the layoff employees that they initially had intended to lay off 30... but since people quit and so many got "fired" they only had to lay off and pay severance to 14.... They layoff was announced 1 1/2 weeks after my termination and affected my dept. also.
Any thoughts? Please? I only want to do what's right.
This is a domestic partnership California CFRA qualified leave.
In April, 2010 we renewed our leave by providing the necessary certification. The leaves are administered and approved (as of late 2009) by an absence management company outside of the employer. All leaves were marked approved. The need to a lot of intermittent leave was needed in April and May 2010. My partner is a lifelong type 2 diabetic. He has permanent issues as a result, also kidney failure, multiple organ transplants, and issues involving melanoma and arterial blockages that were remedied before the transplants.
After the major portion of my issue here, there is one final important point at the immediately afterward:
In April, for the first time in years I started failing to meet in the adherence requirement. It was not simply a little below, but unrecoverable. I was not aware that I had not met until I complained about my adherence numbers again in May 2010. At that point, I was informed I actually had not met the aderence requirement in April, and was failing in May 2010 also. (I was terminated May 21, 2010 and I believe those stats could not be used as I could have possible recovered by the end of May). I asked my manager if my times taken off the phones and CFRA was properly documented in the tracking system. She said as far as she could tell, yes. She also said by taking CFRA, it squeezed the overall time I would have had in a month to meet because by taking leave, I had less hours in the month to meet and would have had to be near perfect in time on/off phones to meet. To me this was an adverse action due to CFRA. I continued to complain, eventually for one week's worth of stats, she had them checked, found an error that they would not disclose to me, and that week I had met anyway - so their methods are suspect anyway.
In May after my manager disclosed to me I failed to meet adhrence in April 2010, the HR manager called me upstairs for a private meeting. She said it looked bad, what was going on, I never had an issue before and that she liked me and wanted to see if there was any way to keep my job. I told her my suspicions. She had to go to corporate for a few days, which turned out to be a meeting to finalize a layoff list in my department that ultimately provided severance for years worked and additional for signing a waiver to sue for age discrimination.... She said she would see if there was "any way she could save my job". She was to return May 21, 2010. Again I told her to check stats and CFRA and insisted I was not out of adhrence!
Note: I was on a final warning for quality and call handle time for 3 infractions over the past 12 months. Never for adhrence.
The rest of the story is that they claimed the stats were correct, and that I was terminated for failing to meet in ADHERENCE.
This case has been accepted by the Dept. Fair Employment & Housing after an interview. They advised me to try an negotiate since it appeared my rights may have been violated. I asked for my job back. Due to my other warnings, they stated they could not (even though the HR Manager wanted to save my job)? I asked then for the severance pay + change in status from "fired" to "lay off" and they said sorry - we did nothing wrong.
My point is that if I had been at work just a couple of days more in April and not on leave, I could very well have met in adherence. If I had known this would have happened, I may have forgone some of the care at home for my partner anyway in order to keep my job and keep us secure. It would have been a hard choice, but an obvious one in hindsight. I am 48 and it's not easy finding another job when you're fired.
The last issue that affected the adherence was brought out in one of the letters from HR to me during my "negotiations". It appears that they also stopped counting hours the early shift worked on another phone line due to an issue with handle times transferring callers to the outsource office in Guatemala. They never told us this was happening, and the issue was not adherence, but call handle times. Removing the hours for that had no bearing on our issue - but it did even take away more hours in the pool I to meet in my adherence. Coupled with the CFRA, this is why I didnt meet obviously. There is also an issue after reading a response letter from HR that they stated in less than 2 weeks, I was out of adherence 9 hours, which was not correct - I would stake my life on it.
Do we have a case honestly? Is the DFEH going to be able to help us? I also have a consult with a lawyer Tuesday if it doesnt fall through, but I'm up in the middle of the night worrying about this. I had to cash out a meager 401K just to make it. They also mentioned to one of the layoff employees that they initially had intended to lay off 30... but since people quit and so many got "fired" they only had to lay off and pay severance to 14.... They layoff was announced 1 1/2 weeks after my termination and affected my dept. also.
Any thoughts? Please? I only want to do what's right.
Last edited:
