What’s Really In Your Employment File: Why you Need to See It

1. Let's say you believe you have a claim for discrimination.

Does the company properly document misconduct or perceived problems with your performance? You need to find out what has been said about your job performance, and when it was said, before you take them on. If you are considering filing a claim that you were terminated due to some form of discrimination or retaliation, your employer may argue that you were fired because you did a bad job. Maybe you didn't treat the customers well, or came in late too often. Perhaps they'll say you just don't get along with your co-workers. It's easy to say, but is it in your personnel record? If the paper trail they provide you shows there was no problem with you or your performance until after you made complaints about your on-the-job difficulties, then proving up retaliation may be far more likely than if they've been documenting problems with your work for years.

2. Have you been misclassified?

When an employer classifies an employee as exempt from overtime requirements and fails to pay overtime even though the employee is diligently working, putting in well over 40 hours in a week, an employer can be sued to collect that unpaid overtime, and the employee can collect back pay for up to the past four (4) years. If the employer is underpaying a large segment of the workforce, you may have a class action. Often employers will classify its workers as independent contractors, when there is nothing "independent" about them. Unless you are truly independent (you do your work under your own direction, have your own tools, etc.) then you are likely an employee, not a contractor. New overtime regulations have just been passed by the DOL, and they raise the bar for employers in terms of minimum salary required for employees to remain exempt from overtime.

3. Has your paycheck been coming up short?

If you have been working overtime, but never see any difference in your take home pay, you may want to find out if the employer is accurately recording the number of hours you've been working. They are required to provide you an accounting of hours worked, and failure to do so may entitle you to collect that back pay based on your accounting alone. If they don't keep accurate time cards, or other records of when you were "on the clock," and you say you worked 50 hours a week, it's very likely you will get the benefit of their ineptitude. Employers who merely rely on schedules without recording your start and stop times, or who pay in cash without any proof of payments, may be seen to be under-reporting hours. Sloppy bookkeeping might lead you to recovering what is owed you in a lawsuit that much easier.

4. Have you read your company manual?

Most companies have a manual reflecting their employment policies, but often they aren't updated as often as they should be, reflecting outdated laws. Sometimes an employer won't remember to distribute them properly. Find a copy of the manual, and if you see that the company is not living up to its written promises, bring it to HR's attention. An employee cannot be terminated for reporting an employer's breach of the law, at least not without risking being sued.

5. Sexual harassment policies in California must be clear to all employees.

Your employer has a duty to investigate sexual harassment claims. If you can show that they didn't take you seriously, they are on the hook for the offensive behavior.

FEHA (Fair Employment and Housing Act) defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

F E HA Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. Prohibited behavior includes:

Unwanted sexual advances

Offering employment benefits in exchange for sexual favors

Making or threatening reprisals after a negative response to sexual advances

Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoons or posters

Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes

Verbal sexual advances or propositions

Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words

used to describe an individual, suggestive or obscene letters, notes or invitations

Physical conduct: touching, assault, impeding or blocking movements

6. Disparagement in the workplace directed at protected classes

If your boss regularly treats you differently than other employees are treated, and you have no negatives in your personnel file, you may be the victim of discrimination. If you are the only member of a particular religion or a certain minority group, or are LGBTQ, document the treatment, talk to witnesses, and try to evaluate whether the treatment is biased because of that distinction. Similarly, if you are demoted after having informed your employer of an impending pregnancy, or are suddenly in the "dog house" because you reported unlawful conduct or registered a complaint for the treatment, make a record and seek the advice of an experienced employment attorney.

By asking to see a copy of your personnel file when being disciplined, demoted or terminated, you are protecting your rights, and obtaining valuable information to assist in any claim you may have. And don't forget to document everything along the way if you believe you are being treated unlawfully by your employer.

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