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  1. #1
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    Aug 2015
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    Default What Can You Do if You are Unjustly Fired for Poor Performance

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

    The Short Version:
    • My boss has created an uncomfortable work environment - hostile may be a bit harsh, but I'm miserable and afraid to speak my mind or even interact with him.
    • Job is becoming increasingly stressful because of workload and boss's unprofessional/childish angst. I feel like I'll be fired, or my situation will only get much worse if I don't work off the clock to get things done.
    • I have more work, much of it with deadlines, than I can complete in 40 hrs. I'm the only employee that can do it. So I put in anywhere from 50 to sometimes even 70 hours every week, while only being paid for about 43 or so.
    • My boss basically looks the other way, knowing (at least having a very good idea) that I put in much more time than I report.
    • Overtime has been cut entirely - I still get a little here and there, but it's not anywhere close to how much I actually work.
    • The company has the money, they've been investing a lot lately, but there isn't a raise system (nobody gets raises at all), and we don't even get CoLA raises.


    My Question:
    Do I have any recourse if I am fired for "poor" performance?

    Beyond legal implications/generally speaking, any advice or input? I've been planning on talking to my boss during my 6-month employee evaluation (yup, two evals every year, but no chance at a raise).

    I realize I can get myself and my employer in trouble for working off the clock, or that it can lead to termination, but that's not my question.

    Background:
    I've been with my company for over 3 years now (9 months as a temp), and my job has become increasingly difficult and stressful over the last year. My boss and I used to be friends outside of work, but our relationship has deteriorated; he's unprofessional, questions everything I do, pays little attention to the work I actually do until it's time to jerk and passive-aggressively (or actually aggressive), express his displeasure with the work I'm doing, or in his opinion, not doing. I'm a developer, he's not and has never been, he has little understanding of what my job is like and doesn't understand how things can take much longer than originally anticipated. He gets that things sometimes don't work out according to plan, and that some things can take a while, but he's increasingly hanging his hat on this idea that he can demand "accurate" time estimates and then hold me to the fire with them.

    Lately I've tried to avoid him as much as possible because every interaction leaves me feeling worse and less secure in my position. He lashes out, and will snap at me (he does so to others, but I'm his favorite target), often in front of others, and rather than enrage him further to only have the situation feel more uncomfortable, I just keep my mouth shut. He used to have a lot of faith and trust in me, but it's the opposite now as he disregards my opinions, is constantly contentious, and is a contrarian to almost everything that comes from me; before, he'd come to me with anything and everything, but lately he limits face-to-face communication with me to the bare minimum. I can't challenge a single thing he says or idea he has or else he snaps back like a teenager, and instantly dismisses what I have to say - situations escalate seconds. He actually used to be the best boss I had ever had, but now he's under a lot of pressure, working multiple positions, and I've become his whipping boy. I now hate my job and dread coming in, especially when I have to interact with him. Others have seen and commented on how poorly he treats me, they discuss how he snaps at me and is visibly angry and unhappy with my performance. He rubs many people the wrong way and a lot of coworkers avoid working with him because he can be so crass and volatile.

    I live in fear of public humiliation, and losing my job because I'm asked to do more than I can do. It's not because I'm a bad employee by any means - I'm excellent at my job and a very hard worker - it's just nuanced and time consuming work, and there's a lot of it. I keep telling myself I only need to do this until I can get caught up, but I'm losing faith that will happen. My plan was to just work my butt off until it was all done, a kind of "I'll show him!" approach, but I'm not sure I'll last that long before either he or I give out. I feel like I'll be able to level with him eventually, but every time I do, things only slightly improve for a little while before getting worse than before. I'm miserable, and the long hours are taking a toll on my health and my relationships with my family and girlfriend. I sacrifice so much more than just time, and my other obligations are constantly neglected.

    I think the main thing I'm hoping to get out of this post is any possible insurance of broaching this topic with my boss and having some form of legal backing - even if it hurts me as well. If he's confronted with how miserable I am and how hard I've been working, I believe he'll be empathetic and reconsider his stance (he does recognize when he's gone too far and acts apologetic, though he never admits he was wrong). All I want is to not hate coming into work every day...


    Thanks in advance, or for even reading a fraction of my novel... I'm totally open for suggestions for a more applicable forum or site I should be posting this.

  2. #2
    Join Date
    Jan 2015
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    1,142

    Default Re: Work

    What you need is counseling, not legal advice per se. All the legal advice you need is that in your "at will" state, an employer can fire you for any reason at any time, legally, in almost all cases. What you refer to as a hostile work environment is not, by the legal definition. It is just pretty much a lousy place to work.

    You say you live in fear of "public humiliation" and losing your job. Really? What's he going to do if he fires you, put it on the local news channel? People get fired, justly or unjustly all the time. It will certainly happen to you at some point in your work life. If you are terminated through no fault of your own, not for a valid misconduct reason, you will probably qualify for unemployment benefits while seeking other work. This is pretty much the only recourse for a person who is fired from a job.

    Now, get rid of the idea from your head that "being fired" is the worst most awful thing in the world that could possibly possibly happen to you. If you are showing up every day and doing your job to the best of your abilities, then that's all you can do. Your employer IS NOT ever, legally required to be nice to you, to be honest about your work or performance, or to be fair to all the employees. He/she is allowed to yell, call names, holler at you, treat you mean, and even to demand that you work unpaid overtime. However, you're dumber than dirt if you keep doing this. He's taking advantage of you. What if you just don't do it? You do as much as you can in the time allotted for you to get the work done. You don't get it all done. He yells at you. So what? He demands that you work until you do get everything done. You ask if you will be paid overtime, legally and all, if you do this work. If he says no, you say thanks, I'll go home. And go home. Show up for work again at the expected time. If he screams, 'You're fired!!!" then smile, thank him, and don't show back up any more.

    If a boss were stupid enough to fire you for refusing to work uncompensated overtime, first of all, go home and get on the internet and file for your unemployment benefits immediately. Then call the state department of wage and hour and discuss this situation with them, discuss all the occasions you can recall of where you have worked uncompensated overtime. This is something you should probably do, even if you are still working there, have not been fired. Call and report them, which you can do anonymously, and they will not report that you were the one who called in. But in the meantime, do refuse to work any more uncompensated overtime.

    What your boss is trying obviously to do is to make the work situation so negative for you that you decide you can't stand it and you quit. This means that you will not be likely to qualify for unemployment insurance while you are looking for another job. If he fires you, he has to show that he had a valid, job related, MISCONDUCT reason to fire you. Just not meeting some impossible "performance standard" that he's cooked up is not misconduct. If you came in regularly and did your best, you did no misconduct. He can always set the performance standards to where you cannot meet them, no matter how much unpaid overtime you put in.

    If you are fired and are approved for unemployment insurance, it will cost the employer money to his tax account. This is why employers encourage people to quit instead of being fired. They lie and tell them it will "look better" or that if they are terminated it will be on their "permanent record" or "hurt their references" or something similar. They may offer to "let you resign" in lieu of being fired. This is all an effort on their part to keep from having to pay higher unemployment taxes. Employers who like the luxury of being able to scream and rant at their employees and fire them for whimsical reasons without warning tend to pay very dearly when it comes to their unemployment tax rates.

    And most people are so conditioned to try to be good employees, as one tearstained person said to me, "I never had a boss before that I couldn't please!" that they will endure an unbelievable amount of humiliation and abuse. But that's not what you're doing there. You're not in the job just to make Joe Blow Boss a happy nice guy. You're trying to make a living. You are doing a decent job, doing your best. If this person no longer wants you to work there, you need, of course, for the sake of your own well being and sanity, to find another job and move on. But don't quit this job until you have found that next one.

    Approaching your boss, speaking to your boss is not going to help anything. He's not going to change, he's winning this war! He's driving you to quitting. Yes, try to work the situation out. Do tell him you feel you aren't being treated fairly or well. But remember you can't demand anything from him or threaten him legally about his behavior. You have the legal right to quit, that's the only one you've got. You don't have a legal right to good treatment or justice. But remember, yes, you can be fired even for talking to him. Or at any time, for any reason, whether or not the boss has any reason to fire you or not.

    So go to work and do your job quietly, professionally and promptly. Begin doing a diligent work search in your time away from work. If he yells at you, say, "I do not appreciate you talking to me that way." Speak softly. Don't be defensive. Don't argue with him, fight with him or engage in lots of complaining and strategizing behind his back with the other employees. Just accept that this job is a bad one right now, and you are moving on. Moving on by your own choice and in your own timing will be the best way to do it.

    Do not let this bad job situation damage your home life or your family relationships. Working for a jerk is stressful, but moving on is the answer. You cannot, by some discussion, demand, or magic potion turn this job into a decent place to work in which you get along with this person. Some people just cannot be gotten along with. Accept this, let everything that goes on at work right now roll off your back as you think about how happy you'll be in your next place. Good luck to you.

  3. #3
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    Aug 2015
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    Default Re: Work

    Quote Quoting comment/ator
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    What you need is counseling, not legal advice per se. All the legal advice you need is that in your "at will" state, an employer can fire you for any reason at any time, legally, in almost all cases. What you refer to as a hostile work environment is not, by the legal definition. It is just pretty much a lousy place to work.
    I realize I can be fired for any reason, perhaps I phrased my question/concern wrong. From a legal standpoint, I really just want to know if there are any laws dealing with an employee expected to complete an impossible amount of work, told there is no overtime, and treated uncivilly to the point in which they feel like their employment is threatened.

    I backtracked on "hostile" on line three, as it really was for lack of a better word - "workplace incivility" would be more applicable.

    I tried to go back to edit my post, but it appears that a mod has changed it and I can no longer edit it.

    Quote Quoting comment/ator
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    You say you live in fear of "public humiliation" and losing your job. Really? What's he going to do if he fires you, put it on the local news channel? People get fired, justly or unjustly all the time. It will certainly happen to you at some point in your work life. If you are terminated through no fault of your own, not for a valid misconduct reason, you will probably qualify for unemployment benefits while seeking other work. This is pretty much the only recourse for a person who is fired from a job.
    I'm not sure if you think you're helping or simply taking an opportunity to patronize someone you disagree with. I apologize for whatever I said in my OP you offend you, but I don't have time to engage in a trivial internet argument. I do appreciate you taking the time to read and respond to my post, but you are kind of being a dick.

    I think you envisioned this as some sort of motivational pep talk or reality check for some hapless, self-loathing idiot, and maybe in my OP I did come across as the type of person that needed those things, but I'm not. I know I can't just go running to OSHA because someone was mean to me - I've got much thicker skin than that, and I can take criticism and some run of the mill rudeness. I admit I did a horrible job of concisely describing what wanted from posting here, so this is probably my fault. I'm an adult, I handle my responsibilities and take care of my own problems - I simply went off on a rant. Likely because I got off topic and failed to provide some details, you're being presumptuous.

    He's not trying to fire me, not intentionally (not yet), but he's an emotionally unstable person, spread way too thin, with little patience, that reacts poorly to disagreeable situations. Trust me, my organization is large and has no issue with firing anyone for any reason, so if that were the case, then I would have been gone a while ago. Additionally, even if he wanted to fire me, they all know how screwed they'd be if I wasn't here - my positions caries a tremendous amount of responsibility, requires a very skilled and experienced person, and I'm the only one here that can do the job. Honestly, he's actually a great person, and as I said, he was the best boss I ever had. This isn't some Stockholm syndrome, victim blaming, justification either, because this situation is not black and white - there are miles of grey in between, and unfortunately for me, right now, I don't know which end of the spectrum we'll be on any given day. Something positive would likely come out of a conversation with him, but my concern is that he'd apologize, things would get better for a little while, then return to the usual lows. He can be leveled with, if even for a moment. The point of this post wasn't to vent about my job and my boss, and I clearly made that the focus - my bad.

    I don't engage in any gossip, talk about anyone behind their backs, and even lately I've stopped venting/confiding in the people I would have previosuly trusted with anything. I just come to work, do my job, and keep my mouth shut - I know better than to risk giving anyone any additional ammo.

    I have been seeking other employment, but that's a whole different story, and I've already digressed too much already. This isn't the place to seek advice regarding general employment issues.

    So my question really is: Are there laws dealing with an employee expected to complete an impossible amount of work, told there is no overtime, and treated uncivilly and in a way that causes them feel like their employment is threatened? In order words, are there laws preventing an employer from indirectly, and perhaps unknowingly, creating an environment that pressures an employee to work off the clock out of fear of termination? If I am fired, can I claim this as a means to collect unemployment? I realize what I'm asking is very subjective and relative to my particular situation. I realize that the things I'm talking about would be difficult to prove, but is it at all possible?

    comment/ator, I'll definitely go back and log my off the clock time - this is a good idea, and I do feel a little stupid for not doing so already, but it won't be hard to recall going back a couple months. Judging from what you said, there doesn't appear to be much I can do legally, but I figured it was worth posting to see if anyone could point me in the right direction (if there was one). I do appreciate the advice you gave (that parts that weren't a motivational speech ), thank you.

  4. #4
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    Jun 2006
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    Massachusetts
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    Default Re: Work

    I really just want to know if there are any laws dealing with an employee expected to complete an impossible amount of work, told there is no overtime, and treated uncivilly to the point in which they feel like their employment is threatened.

    No. There aren't.

  5. #5
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    Jun 2015
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    Default Re: Work

    you situation is at will and being treated unfairly as you see it is a total nonstarter

    I take it you are not yet " fired"

    There is one big loose end in your post about being told there in no overtime ....that depends on details not in your post ...and in general CA has some very employee favorable rules as to how to count OT....so IF your employer is wrong as to OT you may be in for major recovery....but So far that's shooting in dark....some roles are not covered by OT and they,can work you til you drop.

  6. #6
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    Jan 2015
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    Default Re: Work

    Quote: "So my question really is: Are there laws dealing with an employee expected to complete an impossible amount of work, told there is no overtime, and treated uncivilly and in a way that causes them feel like their employment is threatened? In order words, are there laws preventing an employer from indirectly, and perhaps unknowingly, creating an environment that pressures an employee to work off the clock out of fear of termination? If I am fired, can I claim this as a means to collect unemployment? I realize what I'm asking is very subjective and relative to my particular situation. I realize that the things I'm talking about would be difficult to prove, but is it at all possible?"
    I answered everything you asked in the first sentence of my reply. The rest you can get over, but you got on a rant. You are emotionally over involved in your job, which is after all, just a job. Get over it. NO there are no defenses, protections at law, etc.

    If you are fired, you can file for unemployment. They will determine if your employer had a valid misconduct reason to terminate you. Being treated poorly, having all these issues, going into all this schlock about your emotional issues on the job, will get you nowhere. Did you violate a defined, clearly articulated policy of the employer and were terminated for it? Were you given opportunities to change your behavior and keep your job? That's what unemployment, which IS your only recourse in this situation will be interested in. In many years of listening, I have heard many people who have a similar experience to yours. Move on.

  7. #7
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    In the TRENCHES!, California
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    Default Re: Work

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    However, you're dumber than dirt if you keep doing this. He's taking advantage of you. What if you just don't do it? You do as much as you can in the time allotted for you to get the work done. You don't get it all done. He yells at you. So what? He demands that you work until you do get everything done. You ask if you will be paid overtime, legally and all, if you do this work. If he says no, you say thanks, I'll go home. And go home. Show up for work again at the expected time. If he screams, 'You're fired!!!" then smile, thank him, and don't show back up any more.

    If a boss were stupid enough to fire you for refusing to work uncompensated overtime, first of all, go home and get on the internet and file for your unemployment benefits immediately. Then call the state department of wage and hour and discuss this situation with them, discuss all the occasions you can recall of where you have worked uncompensated overtime. This is something you should probably do, even if you are still working there, have not been fired. Call and report them, which you can do anonymously, and they will not report that you were the one who called in. But in the meantime, do refuse to work any more uncompensated overtime.
    AMEN! My thoughts on it also listen to this poster bro. Don't let this jackarse have you going home every night a wreck after working ur butt off all day and going the extra mile for what to live with this this weighing on you everyday and letting it consume you for a second more! You have all this anxiety and stress and filling up your head and emotions until you are just drained and spent so bad inside your quality of life is being effected from this d bag. Why let him do that to you. The way it is now is obviously making you miserable every second of the day so you gotta nip that in the bud or have a serious plan to counter. This is not worth it unless you get paid an insane amount of money to do what you do and you know there isn't another unicorn out there like it. lol which I doubt is the case . Hang tough man ������

    - - - Updated - - -

    After reading through more and more of your thread I can see why now you think your being treated unfairly at work by how your responding to some of the comments from others and I bet you that your boss isn't the monster you're actually trying to make him out as now I don't feel as sorry for you as I originally was lol. Yikes O.O

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