Is there anything anybody can do for me? I am desperate at this point!

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on this web site as a service to the public, primarily when general information may be of assistance. A web site such as this is not an appropriate forum for an in-depth response or a detailed analysis for many reasons, including that the communication is not private. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

I'm sorry this is happening and I can see how uncomfortable it makes you. That said, I don't think you will like my answer.

First, unlawful harassment must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.

Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.

It does not appear the harassment you are experiencing is based on your membership in a protected category. If I am wrong, please let us know.

Employees have limited rights in the workplace. The following should help you understand those rights and your employer's obligations, now and in the future.

California employment is most often at-will, per Labor Code section 2922. “At-will” employment allows an employer to do almost anything it wants with respect to employment. It can rearrange, modify, change, eliminate, and add jobs, hours, compensation, benefits, schedules, duties, titles. It can hire, fire, transfer, demote, promote, train, and not train employees. These changes must take effect prospectively (in the future). For example, an employer cannot change your pay rate for work you have already done, but can change it for work you have not yet done.

There are a just a few things that might prevent an employer from doing what it wants:

(1) public policy;

(2) Constitutional (civil service) rights;

(3) a collective bargaining agreement (union contract);

(4) an individual contract;

(5) contracts for a specific term; or

(6) employment policies.

(1) Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established ) by a government agency. Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status and pregnancy.

In this context, “discrimination” means to treat differently from others who are not in the same protected group, but are similarly situated. “Discrimination” does not mean an employer has to be fair, or has to make good decisions.

In California, a person complaining of discrimination must file a claim with an administrative agency before he or she can file a lawsuit. The person can file a claim with either the California Department of Fair Employment and Housing within on year of the discriminatory act, or with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act.

The DFEH web site is: http://www.dfeh.ca.gov/

The EEOC web site is: http://www.eeoc.gov/

Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and a few more statutes. There are various ways to enforce these rights.

When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy. An employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

(2) Constitutional rights, sometimes called civil service rights, apply to employees of government agencies, who are entitled to due process with respect to employment decisions. Typically, these rights are enforced through a system the employer agency established, or which another government body established. Many of these claims must be filed within six months of the offending event.

(3) A collective bargaining agreement(CBA) includes all the grievances, arbitrations and memoranda of understanding that interpret or supplement the CBA. A CBA is similar to a small body of law that applies only to the group of job classifications covered by the CBA. The rights and responsibilities of the employer, employees, and union are as stated in the CBA. A CBA is enforced by the union, not by a private attorney. Time limits can be extremely short, sometimes just two or three days.

(4) There are three kinds of contracts that a court may enforce. The first is a written contract which expresses (states) some or all terms of employment. People who work in certain industries are more likely to have this kind of contract: science, the arts, upper management, law, academia, intellectual property, finance, and a few more. The contract will include terms of employment which the employer and the employee have to follow. If a party does not, the other party has a potential claim for breach of contract. These contracts may be enforced in court or by arbitration, depending on the terms of the contract. In California, a person can usually enforce a written contract by filing a lawsuit within four years of the breach.

Some documents look like employment contracts but are not. These documents are an employer’s way of recording that employment is at-will. Terms usually address a lack of rights rather than rights the employee has, and nearly always require the employee to sign a statement agreeing the employment is at-will.

The second type of contract court may enforce is an express oral contract, but these can be very difficult to prove. A person has two years from the date of breach to enforce an oral contract.

Finally, even if there is no express contract, a court may decide there is an implied contract; generally, that this particular employee in this particular situation had a right to be treated differently. Getting a court to recognize an implied contract is an even higher hurdle than getting a court to recognize an oral contract. Courts rarely find implied contracts, and when they do, they are limited to long-term employees with a certain kind of employment history.

(5) Some employees are hired for a specific term (duration). For example, an employee may be hired to work from March 15 through November 24, 2012. In this situation, the employer cannot end the employment during the specified term unless the employee violates significant terms of employment or fails to perform.

(6) Some employers have written or unwritten policies or employee handbooks. These are effectively contracts, but instead of applying to one employee, they apply to all or many employees. Many – perhaps most – employer policies include a statement that employment is at-will, or that the handbook does not create a contract, or that the employer can change the terms at any time. Enforcing these policies can be difficult because terms often conflict.


While I have only the limited information you provided in your question, I don't see any unlawful activity by the employer. If I had access to more facts, my opinion might be different.

If there is no legal remedy, there may be a strategic plan you can follow that will improve your working conditions. The MEL forum is not really set up to handle the kind of detailed analysis necessary in your situation. It works best for short, general questions with short, general answers. More importantly, it is not confidential and your employer could be reading every word here. I note you used a lot of names of people at work, as well as in the company. Many employers conduct routine Web searches for any mention of its name. It is quite possible your employer will learn about your communication.

One comment: Perhaps because you are already angry, your question comes across as if you misunderstand your employment rights. Remember, these are very limited. Your employer owes you no courtesy whatsoever. I disagree that this is good social policy, but I don't get to make the laws. And no employer wants to retain an employee who complains, is unhappy, disrespectful, or who bad mouths the company, especially in a public forum like MEL. Often, humility and professionalism will accomplish far more than a demand or statement of entitlement. Again, I have no idea how you appear to your employer or at work, but the way your question is worded sounds as if you expect the employer to conform to your needs, rather than for you to conform to its needs. I wish this were the way things worked, but it is not.

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

I hope you can resolve your situation and wish you the best.

posted by Marilynn Mika Spencer  |  Feb 3, 2012 6:20 PM [EST]