Terminated Because of a Second Job

My question involves labor and employment law for the state of: California.

I'm unsure about this. I was scheduled at my part-time job. I work there maybe one day out of the week max. Not a problem because at my regular job (both in the service industry) I'm easily able to swap or release shifts. I've done it a million times. No issues. This one time, tho... no one would cover my shifts. Four to five days in advance. Employees weren't getting back to me, etc. Sometimes when this happens - at least for actors who need to get a shift covered for an audition - management scrambles and gets their shifts covered. But I was having no luck.

It was now the day before the part-time job shift. I approached one of the managers, told them my situation, asked them for assistance, he ended up yelling at me on the floor in front of customers and some of the staff (he wasn't even busy, or stressed - possibly drunk - a lot of the managers are usually wasted, doing shots behind the bar). Later he apologized and told me to ask the night manager, that it shouldn't be a problem getting my shift taken care of, that I would be called off because it was going to rain tomorrow. See, the largest part of the restaurant is the outdoor patio. When it rains, servers are called off and only the inside stays open. So I spoke to the night manager. The night manager said that it looked like it was going to rain tomorrow and that I would be called off. She wrote a post-it on the computer that I wanted to be called off and said that everything was fine.

I had a few servers call me last minute that they would take my shift, or switch with me for a morning shift (aka instant call off 'cause it was pouring in the morning). Those server were told it was unnecessary because I was for sure going to be called off. Everything seemed fine.

At about 3pm the next day the rain stopped. I was told to come in anyway. At this point it was far too late to go to work. My part-time restaurant shift began at 5:30pm. These guys wanted me to drop everything I was doing, come in at 4:45pm on the opposite end of town (about a 9 mile driving in rush hour traffic). The same night manager called me flipping out, yelling that I was a 'no show'. I said you know my situation, I have to work my other job now, I can't ditch out on them, blah, blah. I asked, "Am I actually needed?" (We WERE over-staffed). She asked me what kind of question was that? I said, well, let me see what I can do, these guys are short-staffed, you will be just fine. Side note: they were. They did not need me whatsoever. This is according to the entire 30+ staff made up of additional servers and bartenders that were working, all whom I am friends with.

The owner of the restaurant comes into my part-time gig later that night. We're friendly. We talked for a while. End of story.

The next day the general manager of my regular job called me on the phone and tells me to not bother coming in today. I ask him, "Do not bother coming in at all ever again, or just today?" He says, "Just today. You're suspended for now. We'll talk Monday."

Monday comes. I'm asked to come in. I'm fired. The reason? Because of a loyalty issue. Because I was seen at my other job. And because I'm an OG (i.e. helped opened this restaurant) and that I should know better (should have gave up my other job for this one). As the GM placed it, "You were just going to get a write-up but then I find out you're at your other job!" They tell me how great of an employee I am, how they don't want to do this, but they have to set an example. I didn't have any prior verbal warnings or any write-ups whatsoever at this gig. None. I was one of the stop servers at this job, liked by everybody on board. These guys had many days notice, full well knowing that I had to work my other job. Like I mentioned, if an actor needs a shift covered, management scrambles and does whatever they can to get it covered (or, you know, just assigns the servers bigger sections - it's not a big deal). The night manager claims she never spoke to me about anything... that I never mentioned I had to get my shift covered. Yet, there is the surveillance camera filming us in the office with her writing a post-it. Yet, there is my hot schedules (the employment app) message being sent to everyone asking for assistance in getting this shift covered. I had never used a sick day before and I easily could have lied and used one up, gotten my shift taken care of, end of story. But, hey, I was told theat I would not be needed because the patio would be closed due to the rain only for them to change their minds at the last minute.

Maybe I'm totally in the wrong here. Maybe I should seek legal consul or maybe I can't do anything about this. I now am unemployed, only have my one shift a week or every two weeks at my part-time gig, and my prior employer has denied me unemployment benefits because I 'have another job'. What should I do?

I see nothing suggesting a wrongful termination.

File for unemployment.

Your prior employer by the way didn't deny you anything - it's not up to them. They can contest, sure, but they don't make the decision.

It's perfectly legal to fire employees for pretty much any reason (having a second job, wearing green socks to work, not smiling fast enough when a coworker tells a joke, showing up for work on time, not showing up for work on time, working too hard, not working hard enough, whatever). What makes for a wrongful termination is firing someone for a reason specifically prohibited by law. Termination reasons specifically prohibited by law include things like an employee's race, gender, disability, age (but only if he/she is over 40) and/or religion. Nothing in your post indicates that you were fired for any reason remotely like this. Ergo, your firing was not a wrongful termination.

And Dogmatique is correct - no employer has the legal right to deny anyone's claim for UI benefits. That's entirely up to the UI people. If you don't like the UI people's decision to deny your claim, you have the option of appealing that decision.

[QUOTE=themacicenuke;948123
Maybe I should seek legal consul or maybe I can't do anything about this. I now am unemployed, only have my one shift a week or every two weeks at my part-time gig, and my prior employer has denied me unemployment benefits because I 'have another job'. What should I do?[/QUOTE]

Appeal the unemployment comp denial if the time to do that has not already passed. Look for a new job. That’s pretty much all you can do here.

You don’t have a claim against the employer for wrongful termination. When the employer is not a government agency, then the employer may legally fire you for any reason (or no reason at all) except for a few reasons prohibited by law. The prohibited reasons include firing you because:

• of your race, color, religion, sex, national origin, citizenship, age, disability, or genetic test information under federal law (some states/localities add a few more categories like sexual orientation);
• you make certain kinds of reports about the employer to the government or in limited circumstances to specified persons in the employing company itself (known as whistle-blower protection laws);
• you participate in union organizing activities;
• you use a right or benefit the law guarantees you (e.g. using leave under FMLA);
• you filed a bankruptcy petition;
• your pay was garnished by a single creditor; and
• you took time off work to attend jury duty (in most states).

The exact list of prohibited reasons will vary by state. The reason you were fired is not a prohibited reason in California or any other state, so it wasn’t a wrongful termination as that term is used in the law. However, you might still qualify for unemployment benefits.

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Quoting eerelations

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It's perfectly legal to fire employees for pretty much any reason (having a second job, wearing green socks to work, not smiling fast enough when a coworker tells a joke, showing up for work on time, not showing up for work on time, working too hard, not working hard enough, whatever). What makes for a wrongful termination is firing someone for a reason specifically prohibited by law. Termination reasons specifically prohibited by law include things like an employee's race, gender, disability, age (but only if he/she is over 40) and/or religion. Nothing in your post indicates that you were fired for any reason remotely like this. Ergo, your firing was not a wrongful termination.

And Dogmatique is correct - no employer has the legal right to deny anyone's claim for UI benefits. That's entirely up to the UI people. If you don't like the UI people's decision to deny your claim, you have the option of appealing that decision.

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Got ya. Thanks, folks!

The one thing I would add, from an unemployment perspective, if you are currently working at the second job, and in a Sunday through Saturday week, you make, in gross pay, more than your weekly benefit for unemployment would be, you can't draw a claim. This would be based not on your reason for separation, but on the fact that you are already working and making more than you can draw in unemployment benefits in your state.

If you are still working, and are grossing less in this Sunday through Saturday work week that unemployment always asks about, regardless of how your pay comes to you, monthly weekly, bi weekly, whatever, you can still file for a week of benefits and draw what is called "partial" unemployment, which means you can report your earning and be given some unemployment to supplement them.

But what they said, no one but the unemployment system can determine whether or not you are able to draw benefits. What your employer did was completely legal, just not nice of them.

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Maybe I'm totally in the wrong here. Maybe I should seek legal consul or maybe I can't do anything about this. I now am unemployed, only have my one shift a week or every two weeks at my part-time gig, and my prior employer has denied me unemployment benefits because I 'have another job'. What should I do?

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What you should have done was put your main job ahead of your part time job. I might not have fired you in the same situation (considering all of the discussion you had with various managers) but I might have because it DOES set a bad precedent. Think about that for the future. Your main job should always be your main priority.