Expert: Michael Troy - 3/30/2004

Question
Since you are unable to comment on any ongoing actual civil cases we will assume that this situation/question is hypothetical.

Joe works in a restaurant and has been there for approx two years with a good work record.  Very few write ups, never missed a shift or did a "No Call/No Show" and has frequently assisted the management in picking up extra shifts, working for other employees who may have called in sick, frequently worked 6 days a week and often worked longer than 8 hours without being paid for overtime.  "You can work a double shift if you want but I'm not paying you overtime" was a line Joe heard frequently.  Joe had a good working relationship with the entire staff, management team and his customers.  His "file" consisted of very few "write-ups" for minor infractions.

The problem Joe has is that his general manager is not appropriate at work and has a personal vendetta with Joe.  He has been trying since almost the beginning to terminate Joe for various reasons.  A double standard always existed with this manager.  Joe found a new job in the same industry but wanted to keep the old job on and work both or at least see how things were going before he gave his notice.  Joe did give a verbal schedule request to another manager specifying that he needed a set schedule for 2 weeks and would not be available to work some days.  That manager misunderstood Joes request and then scheduled him for shifts he could not work that following week.  Before the schedule was posted Joe told the schedule manager that he would definitely not be able to work those shifts.  He told her he would do his best to cover the shifts but with a limited amount of employees he was not sure he could cover them all and gave her notice that week.  He brought it up several times again that week to remind her.  He also called the night manager the day before to tell him he would not be able to work two shift and that he could not find anyone to cover them.

The general manager them decided that not covering those shifts was considered a "No Call/No Show" and decided to terminate Joe.  However he told one of Joe's peer employees to tell Joe that he was fired.  The general manager, nor owner, nor any member of the management team has yet to actually terminate Joe directly.  A meeting is was set up at a latter date for the actual termination.  Joe feels that this termination is not the result of a missed shift and feels that the general manager has a personal vendetta against Joe.  These are the following reasons why Joe feels that.

Joe is an open homosexual and is obese.  On several occasions the general manager has refereed to Joe as a "Big Fat Pig" and has also made jokes about Joes weight.  Joe was worried that there would be retaliation if he confronted the GM, so he went to another manager and nothing was done.  Joe was also called a "Motherf**ker" by the GM for being 1 minute late for a shift and has heard the GM use the word "faggot" in his presence.  Joe feels discriminated against and does not know what steps he should take to remedy the situation.  He is considering making an appointment with the owners of the restaurant to discuss the situation and see if there is a solution.  If a solution cannot be reached Joe would like to know what he can do on a civil level to have his case heard or if he needs to file a complaint with a government authority. Joe lives in California and is unaware if he is protected due to his sexual orientation and his obesity (the obesity did not hinder his job performance).  There were witnessess to several of these events.

If you were Joe's attorney in this hypothetical situation what would you advise Joe to do?  And where should Joe start first?

Thank you.


Answer
Hi Jason,

Having a vandetta against a particular employee, treating him unfairly, verbally abusing him, or firing him unfairly are often perfectly legal.  There is no labor law guaranteeing fair or reasonable treatment.  

However, it is illegal to discriminate against someone who is in a protected class.  Homosexuality is not a protected class under federal law, but it is under State law in California.  California does not have a law against discrimination of the obese, but several cities within California do have such laws.

Joe would have to show that the unfair treatment was because of a bias toward homosexuals, or if he lives in the right city, because of obesity.  

I am not licensed in California and do not have any expertise under that State's law.  But my understanding is that a discirmination claim based on homosexuallity must be filed with the California Department of Labor within 30 days.  Therefore, if it is not already too late, I would advise Joe to contact a lawyer immediately.  I would also have him file a claim with the California Department of labor if he believes the treatment was do to his homosexuality.  If there is time, it would be best to speak with a lawyer before filing since the lawyer might be able to advise on how to phrase the complaint.

Aside and apart from discrimination law, being forced to work overtime without overtime pay is a violation of both State and Federal law.  Joe probably has a claim for back pay for such unpaid overtime.  Again, I would advise him to speak with an attorney with labor law expertise right away to see what legal recourse might be available.

I hope this helps!
- Mike