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retaliation pretext

Discussion in 'Employment, Labor, Work Issues' started by Hector Gutierrez, Apr 28, 2021.

  1. Hector Gutierrez

    Hector Gutierrez Law Topic Starter New Member

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    Jurisdiction:
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    In public corp. retail; my manager does not follow company disciplinary action, written form designed to isolate behavior and together with associate, help change behavior. Instead, unchecked, he stops me from working, writes nothing down, just verbal subjective harassment, bullying sessions. And after several sessions, I document and eventually bring it all to the attention of his boss, the store manager, is his boss then obligated to investigate and follow up?
     
  2. Tax Counsel

    Tax Counsel Well-Known Member

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    No federal or state law requires the manager's boss to do anything about this given the facts you provided. Company policy on discipline does not create any legally enforceable rights for the employees. If you are a member of union that has a collective bargaining agreement (CBA) that provides rules for discipline of union members then the company is obligated to follow that CBA.
     
    Hector Gutierrez likes this.
  3. Hector Gutierrez

    Hector Gutierrez Law Topic Starter New Member

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  4. Hector Gutierrez

    Hector Gutierrez Law Topic Starter New Member

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    okay, then what if the next day I get terminated for some vague reason. Could I then accuse store manager of retaliation?
     
  5. cbg

    cbg Super Moderator

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    No, again not on the facts you have provided. Complaining that the manager isn't following policy isn't a right protected by law; therefore firing you for complaining about it is not illegal retaliation.
     
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  6. zddoodah

    zddoodah Well-Known Member

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    You could accuse him of retaliation or heresy or anything, but that wouldn't change what "Tax Counsel" wrote.
     
  7. Zigner

    Zigner Well-Known Member

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    Let's say it was retaliation - a clearly cut and dry case.
    It means nothing, since it's not illegal for the store manager to retaliate against you for going over his head in this situation.
     
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  8. Tax Counsel

    Tax Counsel Well-Known Member

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    You could accuse the store manager of retaliation. Indeed, it may be that the store manager did in fact fire you as retaliation for going over his head to his boss. But it's important to understand that most retaliation by an employer over something an employee does is legal. What is generally illegal is when an employer retaliates against an employee because the employee exercised a right that the law expressly gives the employee.

    For example, suppose Amy's employer pays her less than her co-worker Ben for doing the exact same job. Amy believes that she is being discriminated against because of her sex. She files a complaint of illegal discrimination with the federal Equal Opportunity Employment Commission (EEOC). The employer retaliates against Amy for filings that EEOC report by firing her. Federal law expressly provides that retaliation by an employer for an employee reporting illegal discrimination is itself illegal, so Amy would now have a potentially good claim against the employer for both the illegal retaliation and for being paid less because of her sex.

    On the other hand, suppose Barry's boss keep assigning Barry the crappiest assignments available because Barry is a Kansas City Chiefs fan and the boss hates that team because he supports the Las Vegas Raiders instead. Barry goes and complains about that to his boss' boss, the district manager. Barry's boss finds out about that and fires Barry. Barry was fired in retaliation for complaining to the district manager about always getting assigned the crap jobs. But that retaliation is legal because no law protects Barry from discrimination based on what football team he supports and there is no law that protects him when making a complaint about it.

    So before you complain to upper management or HR about how your boss treats you, you want to find out if (1) the law protects that particular kind of complaint and (2) if there is no legal protection, you want to know your company culture and how those kinds of complaints are regarded and treated. Complaining about your boss when there is no legal protection for you means that you are relying on the good graces of the upper management to have your back. And in a lot of companies, most complaints about your boss won't be taken well — they'll see you as simply a complainer and won't have a problem if your boss cans you for making the complaint. So pick your battles carefully if you want to keep that job.
     
    shadowbunny and PayrollHRGuy like this.

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