Employee Rights Attorney

Mission Viejo, California

Q: “I worked in sales for a major corporation for over three years without incident. Nearly a year ago, my manager accused me of using a false signature on an enrollment form and wrote a letter that will stay in my personnel file for one year.

“I insisted I was innocent but was told by the manager and the human resources department that there was nothing I could do to prove my innocence. I was also assured that it wouldn’t affect my chances for promotion. Well, it now appears it has adversely affected my promotion opportunities.

“Is there anything I can do at this point, such as going before an arbitrator or seeking a handwriting analysis? Was there something I could have done at the time of the dispute?”

A: “Misrepresentations about you are certainly improper. The problem is proving that the accusations were made intentionally without a proper basis in fact. Your manager may also claim immunity from liability because of a ‘managerial privilege’ to express an opinion to other management personnel and to you about his perceptions of your performance.

“Evaluate how reasonable the accusations are. Was there anyone else who had a reason to enter a false signature on an enrollment form? Were the commissions for the enrollment going solely to you? Was it signed on a date that you were working there?

“You can certainly take a copy of the enrollment form to your own handwriting expert and do an evaluation, but the company is not required to comply with your request for a handwriting analysis. Your results might help soften the attitude of your supervisors, however.

“Evaluate if this, in fact, has affected your promotion opportunities. Are you better qualified than other candidates who are getting promotions? Review your company’s grievance procedure. Is there an internal dispute resolution process that you can use?

“Balance your desire to ‘clear yourself’ with the possible antagonism that you may cause your supervisors. Your quest for better job security may backfire.”

Employee Rights Attorney

Mission Viejo, California

Q: “I am a staff professional who recently accepted a transfer to a new department. Within days, it was obvious that my new supervisor was mainly interested in giving direction without accepting my input and in treating me like an untrained employee.

“I endured six weeks of heavy handed supervision and several unflattering, unfounded and widely circulated e mails that demeaned my contributions. The last straw came when this supervisor told me my transfer had been necessitated by various rumors about my performance and that “some people,” implying my former department head, were dissatisfied with my work. My former department head said this was untrue, an assessment that was confirmed by my last performance review.

“I believe my current supervisor needs to be reprimanded and removed from my review team as well as from being my supervisor. But I am concerned about the office’s laissez faire attitude on these matters.

“Do I have any legal recourse? Do you have other suggestions for persuading the office to remove her as my supervisor?”

A: “It is illegal for someone to make deliberate misrepresentations about another person in the workplace, so you might have a defamation claim.

“But you have to be careful making these assertions. Often, the information you have about the apparent misrepresentations isn’t clear. For example, the rumor that ’some people’ were dissatisfied with your capabilities might actually be true if your supervisor has sources other than your former boss.

“Management people also have some rights to discuss their employees. However, these comments need to be relevant to the workplace situation and conveyed only to other management personnel or employees who have a need to know such information. If your boss exceeded those limitations and deliberately stated misrepresentations about you to others, you might have a claim.

“You have a dilemma, however. If you demand that your supervisor be reprimanded and removed, but are not successful, your relations with that supervisor will undoubtedly worsen. On the other hand, if you are successful in having your supervisor reprimanded or removed, other management personnel might perceive you as a whiner and not a team player.

“Instead, consider asking for a transfer. Explain your concerns to your supervisor. She might appreciate your honesty, as well as discussing your concerns with her first before going to her bosses. Consider expressing your complaints diplomatically in a letter. Retain a copy.

“Try to determine why your supervisor is so critical of you. If it is based on any sort of discrimination or is retaliation against you for being a whistle blower, you would have even more rights to assert.”

Employee Rights Attorney

Mission Viejo, California

Q: “I work for a very large corporation. At our local office we have three immediate supervisors, and two of them are making the employees’ work life very stressful to the point it is almost unbearable. They continuously make derogatory remarks about employees to other employees, threaten employees with their jobs and make derogatory remarks against the third supervisor to other employees. They fly off the handle, refusing to talk with employees for days if they feel like it. They discuss people’s job performances with other employees rather than in private.

“Numerous employees have complained over and over about these supervisors. The supervisors in the past have been reprimanded, but that was as far as it went.

“Do we, as employees, have to be subjected to this kind of verbal abuse and unprofessional treatment? Where can we obtain any publications for employee rights in the workplace?”

A: “Slander in the workplace is often a big problem. Employers will argue that varying types of management styles are permitted. Supervisors need to comment about workplace situations to the employees involved and others as well to make a point. They will characterize the derogatory remarks as constructive criticism to improve performance.

“On the other hand employees can also argue that such improper remarks go beyond the privilege of private discussion among management. This is especially true if the remarks are false. The employee handbook might even regulate the manner in which comments about performance are to be made. The comments might even violate the company’s promise of fairness and sensitivity toward employment issues.

“The law allows certain privileged communications within the workplace, especially among management and those with a ‘need to know.’ Those who are told, however, must have a justifiable reason to receive the information.

“If the remarks are untruthful, an employee might have a claim for slander. If the remarks are truthful but are simply poor management style, violate company policy or are harassing in nature based upon discrimination, the employer may also be liable.

“If the employer knows about an impropriety in the workplace and fails to correct it, I suggest you write about your complaints to higher management. Review the rules of your own company. If you don’t have a handbook or you are unsure of the policy, check with your human resources department. If the treatment if discriminatory against you, based on age, sex, race or any other recognized basis, your case would be much stronger than if the supervisor is simply a harasser of all groups.

“In the alternative, consider sending a letter to the harassing supervisors directly before going over their heads. They might appreciate the consideration, which might lessen the chance of retaliation.

“Additional publications regarding discrimination and harassment in the workplace can be obtained from the Department of Fair Employment and Housing. Publications on wage and other types of retaliation matters are available through the California labor commissioner’s office.”

Employee Rights Attorney

Mission Viejo, California

Q: “I recently completed a one year assignment as a contractor with a large company. I left under what I believed to be favorable circumstances.

“I recently became aware that the project manager at the company has been giving extremely negative information about me to prospective clients. I did not list this person as a reference, but prospective employers and headhunters call her when I list the project on my resume. One of my associates, posing as a headhunter, called and was given a very bad recommendation on me.

“Do I have any recourse? It is difficult to refuse disclosing where I worked, and if I do, I am effectively unemployable. I have been out of work for several months, largely I believe, because of the ergative information supplied by this former manager.”

A: “It is illegal for a company to give false information on former employees to a prospective employer. In fact, an employer who does so could face a criminal violation and triple damages.

“Employers can make truthful statements about a former employee, but whether these statements are true or false can be very subjective.

“Since many employers could face a protracted and expensive lawsuit if they give out negative information, many employers only provide the name, job title and dates of employment.

“If you are concerned about the information being given by your former employer, consider writing a letter to the company or the person giving the bad reference, advise them of their potential liability to you and request that they limit their remarks about you in the future.

“You could also tell them that you will monitor their references in the future with other prospective employers or friends. Since they will not be able to determine who is a prospective employer or informant for you, the warning is usually enough for them to change their practices.

“Have someone call them later to check if they have really changed. If they haven’t, see a lawyer. Keep in mind that you still would have to prove that what they said about you was not truthful.”