California CFRA and Work Policy Problem - I'm Being Fired

[JohnErick]

What is the name of your state (only U.S. law)? CA

This is very long and confusing. PLEASE if anyone has any idea on this, bear with me. I need help.

I hope someone has some information that can help me. I work for an employer and have CFRA under California to care for a domestic partner. He had brittle childhood diabetes, kidney failure, a heart attack, cancer and finally organ transplants to save his life. Unfortunately, even though he is considered healthy, there are several factors that have me staying home from work under CFRA alot.

Our company has several accountabilities that we must adhere to. One of them is called "adherence". In a call center, they want to make sure we are not goofing off and are on the phones taking calls. If you go away from your desk, or are late coming back from breaks, you lose a small percentage of adherence, even if you were late going to break because you were doing your job and stuck on a phone call. This leads alot of people to cut their breaks or lunches short or not take them at all out of fear of losing on adherence.

You start with 100% per day and move backwards as violations occur. For the last 5 1/2 years I have met in this category. Mysteriously, in April 2010 I started going under big time. We would have to meet at 90% adherence for a month, and in April I was at something like 85.7% and for May so far I am at 87.5%. Usually I am at 92% or higher.

I recently became frustrated because of my continued percentage being below meeting on this accountability. I challenged it and my manager came back and said they found the mistake, and it had been adjusted - for one week. They compile these stats and keep up informed one week at a time. I challenged again this past week as something is not right. Now they will not review back for the other weeks including last month to find out what is wrong and I am being fired either this Friday or Monday for this particular reason.

We have 3 times we can fail to meet in an accountability, which includes adherence, call handle time, attendance and call quality. If you fail in one for any given month, you are on a 1 year probation. If you fail again in that year, you go on a second warning and start over on a 1 year probation. Same for the third, then termination. My previous 3 failures were in handle time and quality and this termination is coming due to adherence.

My questions (finally - I know, sorry) are:

1. Do I have a right to have them go back and check all the weeks I haven't met in the last 2 months to find out why? THey seem to go by what the computer says, even though in that one week, they found a mysterious issue and won't tell me what it was.

2. I was also told we start out with 100% for each day on adherence, and as infractions happen, we move backwards. We are allowed 40 mins. per day on an 8 hrs shift before we fail to meet. If we work a 4 hr day, our window is only 20 mins to be out of adherence before we fail to meet. I was told because I have had to take alot of CFRA, my window narrows anyway. I realize regardless, if I'm only there for 4 hrs I should be able to meet, but something is wrong and I am not. Also, if someone calls out sick, not on FMLA or CFRA, that is not supposed to count against us, but I have a feeling it is for some reason. Is this legal under the CFRA or FMLA protections? This is so confusing, I'm lost myself.

3. On our phones we have 2 buttons that will stop calls if we need to seek help or finish up comments on a particular call. One is called WORK which we are to use if we are doing work related duties (this also affects our departments overall hold times by the way) and an UNAVAIL button that we are to use if we go to the bathroom or leave our desk to get coffee - non work related things. It's the UNAVAIL button that works against our adherence also. We were told in the last month or so to NOT use the WORK button as it hurts the dept work time. So if we're doing work, we have to use the UNAVAIL button. If they see we've used the WORK button even to do work, and it's alot, we get asked why we're using it and told not to use it or keep it brief. Since I was abiding by their rules unwillingly (knowing something like this may happen) I have lost the critical few critical percentage points I had to keep from failing.

4. Also, we have several phone lines depending on the service the customer needs. Alot of us are trained on multiple phone lines. As needed, a manager will call and ask us to switch temporarily to help out. We have a sheet we are supposed to fill out with the times we are not on our scheduled phone line so they can adjust our adherence. Sometimes it's so busy, alot of us forget to mark this down. If this is the case, even though they can see we were on a different phone line and accounted for, we are docked in adherence. It is also admitted to by mgmt that it is their responsibility to report these moves to "someone" (I assume the people tracking this in the computers) via email or a phone call, which they admit alot that they may not do as it's busy and they get lost also. Is this fair?

Anyway, I am losing my job. I a rare never before heard of move, our HR dept called me up on Monday to discuss the issue. The head of HR here told me she couldn't understand what was happening, I'd never had this problem in the 5+ years. They actually told me they like me and didnt want to see me get fired, but with all of this info, she said it didnt look good and she did look very distressed. I literally felt she was going to cry. I am not a bad employee, I am always at my desk doing my job and pull my weight in volume of calls with everyone else, I just dont get it.

Do I have any recourse? I am so stressed. I can't lose my job if at all possible. I have a perm disabled partner and lots of bills that will report late to my credit and destroy it if I lose my job - like many others. HELP.

 

[swalsh411]

Nothing in your post indicates your employer has done anything illegal. The law really doesn't address warnings, discipline etc unless it's based on a legally protected class. And besides employers are rarely legally obligated to follow their own policies anyway.

 

[pattytx]

And what does being on CFRA leave have to do with you not meeting work standards?

 

[commentator]

When you are terminated, file for unemployment insurance. Give them the information about why you were terminated and let them make decision about whether this is a misconduct termination. This is pretty much your only recourse, and if the company has documented as carefully as it appears from your post, you probably won't be approved for benefits.

It is perfectly legal to terminate an employee for other reasons, even though they have an on-going CFRA. This might possibly protect you for being terminated because you were on the special leave status or for having absences that were covered by this, not because you had another work related issue, such as failure to meet these carefully monitored performance measures such as you describe.

It sounds as though someone in the company may very well have found you a problem employee due to your frequent (though very legitimate) absences, been looking for reasons to get you, and when they had them, bam. This is perfectly legal. Your option was to not give them any reasons.

You can maintain in filing your unemployment claim that the monitoring record of your adherence does not seem right to you, that you do not feel it is accurate, that you do not believe you legitimately had these particular rates that they showed. Explain how you questioned this rate and asked to be shown the monitoring, but were refused. Mention the error that was found in an earlier report.

By raising this issue, you can cause them to want to introduce the printouts as evidence, and may get to see what is on them during the unemployment process.But just because you are being terminated, no you do not have the right to demand to see these records. Your employer does not get to say whether you draw unemployment, but they can definitely terminate you without giving you a good reason, showing you the evidence, or anything else. This HR lady may have been sad for you, may never have seen such a thing before, but this won't help you keep from having it done to you. It is possible they are trying to make an example of you. Tough, unfair maybe, but definitely not illegal.

It does, since you believe you are being terminated, seem like a good idea to take away your copy of the company handbook, notes and emails you might want to save before you are walked out the door. It is pretty amazing that you have been told you are going to be terminated and they have allowed you to stay around for any length of time. Maybe they are just going to threaten or warn you severely.

But you cannot at any point stop the company from terminating you if they are so inclined. They can do so at will, for any issue or no issue. If they cannot prove they have a valid misconduct reason to terminate you, you may be able to draw unemployment benefits after it has happened. But that will have to be determined by an investigation and a decision made by the unemployment system. It will take a while to get this, and may not go in your favor.

The only other recourse is to apply for needs based public assistance and be looking very hard for another job.

 

[JohnErick]

Thank You All For Your Input

Just wanted to extend a thank you to everyone for giving me insight into the whole situation. I'm sorry it was so lengthy, but I was pretty upset and wanted to make sure I mentioned everything I could think of.

I have worked 30 years and have never been fired, and I'm not sure how someone of my age and orientation will be able to come back from this and find a job in this economy, but of course I have to try. This is all new and scary. I received a new tally today for the past weeks adherence, and they again say I was at 88%. I can't imagine, nor can anyone that sits near me, where I could possibly evaporate to for 12% of the work week. Especially when my boss continually told me that I was one of the best employees as far as adherence on our team. They used to not count CFRA days against our adherence, but that's all I can think of that would trigger this; a change of policy.

Well, wish me luck. I'm out of options, but will keep the suggestions in mind as Friday (or Monday...) dawns.

 

[JohnErick]

Reply For Pattytx

And what does being on CFRA leave have to do with you not meeting work standards?

Hi Pattytx. I'm not even counting other areas of our standards. Our entire department on the west coast is slowly being terminated for failure to meet. Most of these employees have been near flawless for 10 years or more - senior reps. I learned I have to go by what our competing office says when they score us.

My only concern is this final failure to meet; it's simply something my fellow associates or myself can fathom. These stats for adherence, in the past, have never been an issue for me; it's just strange after 5 years they just suddenly changed so drastically; I dont believe they are correct, and they did find an undisclosed error and corrected one week I challenged with similar percentages. I now understand they dont have to do anything to fix them, it's just odd after 5 years of CFRA that they might have changed the policy and forgot to tell me. I just wish it was for something more tangible that they would fire me for. I was closing in on the date these would fall off my record, but such is life!

 

[commentator]

Hang in there! Don't let the fact that you're being "fired" for the first time totally tear you up. Just because your company, where you feel confident you were a good employee for many years, has chosen to let you go for their own reasons, I am sure, that does NOT make you a bad employee or a bad person. I think the most telling thing said was " ...our whole West Coast operation is slowly being terminated for failure to meet."

You might've seen the writing on the wall, gotten out before it happened to you, but odds were very good it was eventually going to happen to you. This didn't mean as much about you as it does about the company and what decisions they're making.

When Friday/Monday comes (and I'm still not sure it's going to be a final termination) be prepared. Go out professionally, cheerfully, don't be bitter or hostile or require security intervention like some have done. I might ask them one more time if I would be able to see my records as it appears to you that something is wrong with the calculations that produced these results.

Maybe the lady who cried for you or someone else will be able to provide you a good work reference in the future. It doesn't hurt to ask.

Keep on this issue of there being a problem with the calculation of these final totals when you file your unemployment. Performance terminations are hard for the employer to win, as to keep you from receiving unemployment benefits, they must prove that the employee deliberately did not do a good job, as measured, having in the past been able to do so, then they willfully and deliberately chose not to do a good job, by their behavior in this case. If the performance standards were accurate, if you stayed out too much, spent too much time in the john, slacked in your work, then they gotcha. These were performance issues you had control over.

If they ramped up the measurement, produced measurements of performance that were contrary to what you believe to be accurate, would not cooperate with providing you proof that they were right when you tried to question and work out the issue, you may have a case for unemployment approval that you were not to your knowledge doing anything that would be construed as bad performance, that you did everything you could to keep your job, and that you did your job to the best of your abilities.

Let us know how things go in the future. Good luck to you.

 

[JohnErick]

Thanks Again - It's Over

Hi Commentator, thank you for the kind words. The termination took place Friday, so I am filing for unemployment and starting to look for that next job. Hopefully it will not be as crazy as this last one!

Suprisingly, after the dismissal, the dept. head walked me down to my desk and asked if I had anything I needed to get - which they usually don't do. People just disappeared and were gone. Then she let me stay there unescorted for 10 minutes to say good bye to people! I've heard this is not how it usually all goes down, but I'm glad. The crying I was not expecting - I guess I made an impact there I never realized, but that's another story.

Thanks again for all of your advice! Onward and upward?!

 

[JohnErick]

A Brief Follow Up

I just wanted to add to this! Just to be safe, I submitted a claim online through the Dept of Fair Employment and Housing. I gathered all of my notes, and had the phone interview yesterday. I wanted to be sure everything was on the up and up. After a lengthy interview, the representative told me that the State would accept the case for filing. She gave me the whole rundown on the timing for my receiving the written complaint and how long the process takes - which is lengthy. She also told me that if I felt comfortable, I could continue to "negotiate" with my employer for re-instatement or what I feel is fair. The week following my termination, they announced layoffs of many in my department, of which I was to be one, with generous severances and additional monies if they promised to sign a letter to not sue for age discrimination. Anyway, it was very complicated.

Finally my question: They DFEH wants me to "negotiate". Should I do this on my own, or at this time, should I have an attorney help me in this process? I'm not looking for a huge payout. Honestly, I just want my record to show as layoff and to obtain the severance the others have received. In my case that's very small, under $10k.

At this point, the unemployment people made a mistake on my claim and it will be a month before I even get my phone eligibility interview. Unfortunately, I am giving up food quite frequently to make sure my partner eats. This is a nightmare, and still no job, but I have to continue to look. Unemployment for my case is only $310 week and it's a long way off. Thanks for any advice on self-negotiation.

 

[Hot Topic]

Unemployment in California has been a nightmare for many. Appeals can take months instead of weeks. It's necessary to make numerous calls to the unemployment office's toll free number in order to talk to a person, not an automated message. After my severance ended at the end of 2009, I was told to expect one week without payment. Turns out payment didn't start until February because I wasn't told someone had to conduct a telephone interview with me first.

You'll have to be patient and look to social services for food and other assistance.

Go to Employment Development Department. You're required to submit your resume.

 

[commentator]

JonErick, I'm really sorry you're having such problems with all the so called support systems available for people in this country.

Related to unemployment, just be very sure you are filing a certification for each week that passes. If you have not been allowed to do so, or you are not yet to that point in your filing, when you do talk to someone, demand that your claim be backdated to the first time you attempted to file, be very firm that you have made a good faith effort to file each week, and that you are entitled to weekly certifications for benefits from that date forward. Then if you eventually win, you'll be back paid for each week that has passed.

Be sure you keep records of each person you talk to, when you talked to them, what you were told by them, and be sure you keep calling back so that your claim does not fall through the cracks. Make sure you have done the required job seeking service registrations and are cooperating fully with their programs. Do not tell them that having to care for your partner must excuse you from job seeking activities. Actually, you should have plenty of time to do everything. Just be sure you are doing everything they ask you to and that you are presenting yourself as fully able and available for jobs.

Do not get confused and think that because the California Fair labor commission or whatever it is has agreed to take your case, that will have any relationship to your being approved for unemployment. The two are completely separate, one does not share information with the other, and you will need to make a separate case with both. Even if your former employers agreed to change the reason you were terminated today, give you a lack of work lay off today, the unemployment claim would still have to go through the decision process, many weeks involved here!

In negotiating with the employer regarding your termination through the fair labor commission, it is my opinion (for what that's worth!) that it is probably a good idea to have an attorney. Unlike unemployment insurance this is not a system set up for self representation. And it is my experience that companies are much more intimidated by legal representation, will tend to yeild and make settlement offers even when they are not technically obliged and would probably prevail if it were carried through the court system.

If I were you, I wouldn't be too sweet and reasonable at least at the beginning. I'd at least scare them a little, go in not only asking for a legitimate lack of work lay off, and the same severance everyone else has received, I'd ask for some compensation in addition. But that's are area where an attorney would be helpful to guide you. How about Legal Aide or some pro bono representation through the department of social services in your state?

As everyone says, please be applying for every form of assistance you may be able to get, including food banks and food stamps. you've been a tax paying productive citizen for many years, it is now time to get help, and later you can pay it back in in the form of taxes again when you get another job.

Whil