possable discrimination in AZ need advise/ help!

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possable discrimination in AZ need advise/ help!

Post  ecurbe on Wed Sep 03, 2008 1:47 am

here is the long and short of my problem.
on Aug 27Th of 2007, i was very badly burned at work (i work at a body shop at a luxury car dealer) in an accident while working. the accident resulted in a 3 month stay in hospital and several additional months in rehab. the burns went from my fingers all the way to 6" below my shoulders on both arms.

when the accident occurred there was no means of dealing with a fire as far as incident training and there was woefully inadequate fire suppression (1 fire extinguisher for the entire shop that was not readily available.

i was told "they would have my job waiting for me when i recovered" by my workman's comp case worker as referred to her by my work.

i learned,much to my dismay, that in AZ, you can not sue your employer if they carry workman's comp insurance. you must sure workman's comp. , but then you will be held liable for medical expenses. "crap, i can't win!..at least i am alive and my medical is paid for" ran through my mind as i lay in the hospital.

fast forward to me returning to work, much to their dismay. "well we are not sure what to do with you, what are your restrictions" i presented both my manager and the HR person with letters from my doctors and lists of the meds i was on at the time. i was informed that while on any narcotics you will not be allowed to drive a car other than your own. no problem.

i was assigned to a "helper" position for 2 of the other techs to start off with. (i have been a body tech for 5+ years now and a "helper" is way below my capacity or level of experience) i did not complain since i was back at work and was told that i could return to "full service" as soon as my restrictions were lifted. (one of the major restrictions was no welding, vital to my job).
it slowed down, work wise, so they gave me the job of constructing a storage shed out of 2 shipping containers, as my welding restrictions were now lifted. i might add that the structure i was asked to build was neither inspected or had a permit to build (as it would never pass code). after finishing the structure (mostly done on my own, with out the assistance of anyone else other than instructions on what they wanted accomplished), i returned to work, in a full capacity as a body tech.

my work was constantly over scrutinized by both my shop Foreman and manager to the point that i was well above what was expected of the other employees. i was also made to feel that my job could end at any time. i sucked it up and continued to work, now at 10+ hours a day, even though i was not getting paid for it (commission). i took it all with a grain of salt and was determined to prove that i could work just as well as before the accident, even though they were cutting back on the number of cars they were giving me and assigning more to other employees, effectively cutting back my pay.

fast forward to 1 1/2 months ago as my "anniversary" of the accident is approaching. after returning from a management seminar i am called into the office by my manager, and asked "where do i plan to be in the next 2 years?" and "how do i feel about the way things are run here?" i proceed to tell him what i feel are weaknesses and strengths of the shop with out any personal attacks. i am thanked for my time and return to work. 2 days later my shop Foreman pulls me aside and tells me that he doesn't believe in keeping secretes and there is something going on and i should go and confront the manager.

i go directly to the manager and ask what is afoot? he informs me that we are going to a team system where all the hours are pooled and that "no one wanted me on their team" "with out a team to put you on, you don't have a job" huh.........
the next day i am again called into the office with both my shop Foreman and manager. i am told that i can be on his team, but i "must take the smallest portion of the hours on the team" well rather then be unemployed i agree. this basically gives me ANOTHER pay cut, although i received a $1 a flat rate hour raise.

this has been ongoing for the last month, with more and more pressure and undue scrutiny being put upon me as my 1 year anniversary approached. it all seems to be coming to a head now after a year of trying to encourage me to quit, both by actions and verbally. they may give up and let me go against my will. i have purchased a digital voice recorder that i carry with me everywhere at work, so i am prepared to do my best to document and defend myself. i was just determined to continue working there especially with the $30+K investment in tools to do the job.

i am now seriously considering a job/re-education as a pharmacist.

BTW, as a result of my injury, i am considered "disabled" or "handicapped" because of a limitation of the movement in my right wrist due to scar tissue build up and scar attachment to a tendon in my wrist.
i am feeling discriminated against because of:
1. the workman's comp claim
they had never, in the history of the company, had a claim with Workman's comp. they had no idea what to do as far as paper work, how to deal with the claim, anything. i had to do research and find out what to do from my hospital bed when i was not heavily sedated. it seems to me that they think they are paying more because i am still there working, maybe. i know that is not true as i asked my case worker, and was informed that it is 1 claim that is it. irregardless of whether i still work there or not.

2. because of my limitations.
i have limited mobility (flexation) in my right wrist. when you do body work you need to be able to twist yourself in all different directions to sand different contours, angles, and shapes. i also have a hard time with holding the dolly (a heavy, solid piece of steel that is used to form the sheet metal, similar to a hand held anvil) in certain situations and confined spaces. i essentially had to re-learn how to do my job. both from not doing it for 6 months, and from having to do it differently to overcome my disability. doing all this while under pressure to get cars out, maintain a high quality, and still get paid enough to live on. i had to have a fast learning curve as i was constantly being reminded of how i need to figure things out so we have a place for you.
i pretty much blew through my savings to keep things afloat while i was in the hospital and not working ((mortgage, utilities, tool bills, etc.)) Workman's comp doesn't pay much and the long term disability insurance wouldn't pay most of the time because the workman's comp checks were considered a form of income. (vicious circle)

3. the over criticizing of my work. when i came back to work, i notified my manager of when i would be able to return to work. he responded with, "OK, let me see if anyone is afraid to work around you or has a problem with it because of my accident" huh???? way to be a manager. he was implying that i might just go around randomly lighting fires or catching myself on fire?????

4. there has always been and unspoken undercurrent that i could be let go at any time and they were looking for a reason to do so. i am pretty stealthy and amazingly enough still have excellent hearing. many times have i walked into the office only to hear a certain writer, or a certain employee, trash talking my work to the manager. only to hear the manager going right along with them.....until they see that i am there.

5. for the first time in my life the stress levels of my job and the extremely low pay are effecting me greatly. today i couldn't do a large, but simple "bondo" repair, i just couldn't get my mind and hands to work together. i ended up shutting down and going home. i work on a team that is 4 Mexicans, myself (white) ,and the above mentioned employee^(also white). trying to communicate is near impossible, my Spanish is OK at best, their English is almost indiscernible. this also adds to the stress at work, as communication is vital if you are on a "team". i have no issue with their ethnic background, in the body shop business, it is predominately people of Latin decent and i have worked with many, many, and never had an issue.


to top it off i was fired today. so time is kind of the essence, i did however record my exit interview on a pocket voice recorder



--------------------------------------------------------------------------------

ecurbe

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Re: possable discrimination in AZ need advise/ help!

Post  JoeC (McGruff) on Wed Sep 03, 2008 2:12 am

Wow that is quite a story. All though it is true that W.C is the exclusive remedy for workplace injury. The company could be in violation of A.R.S 23-1501. Severability of employment relationships; protection from retaliatory discharges; exclusivity of statutory remedies in employment
Link here: http://www.azleg.gov/FormatDocument.aspinDoc=/ars/23/01501.htm&Title=23&DocType=ARS.

Also the Arizona statute offers a constructive discharge statute ( But don't quit your Job) A.R.S 23-1502. Constructive discharge Link here:
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/23/01502.htm&Title=23&DocType=ARS

Under either reading there could be a cause of action. So contact an employment attorney in Arizona familiar with W.C and the retaliatory discharge statute.

The statute is clear A.R.S 23-1501(3). An employee has a claim against an employer for termination of employment only if one or more of the following circumstances have occurred:(c) The employer has terminated the employment relationship of an employee in retaliation for any of the following:(iii) The exercise of rights under the workers' compensation statutes prescribed in chapter 6 of this title.

Therefore you should contact an attorney.
JoeC

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The term "wrongful termination" or "wrongful discharge" covers employee actions alleging that the employer wrongfully fired the employee. Wrongful termination can be based on[b:55a7] several theories[/b:55a7], including breach of an employment contract ,violation of public policy ,constructive discharge, as well as the protection given by the Whistleblower Protection Act of 1989 and comparable state laws to an employee who reports wrongdoing McGruff & The Korean Fly Girls L.L.C.
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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Wed Sep 03, 2008 3:23 am

thanks! i tried to give as much info as possible.

since i no longer work there as of being terminated today. i will be free to contact a lawyer and research the statues in depth tomorrow. thanks again for the speedy reply!

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Re: possable discrimination in AZ need advise/ help!

Post  JoeC (McGruff) on Wed Sep 03, 2008 3:24 am

Your welcome I hope it works out.
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Re: possable discrimination in AZ need advise/ help!

Post  bears00 on Wed Sep 03, 2008 11:05 am

First of all, I am sorry for your accident. It seems as though they have treated you horribly.

Joe points out some very good statutes that you will be able to use in your defense. You should start NOW documenting exact dates and times of things that you remember.

Your company will also make a defense. They will say that they had no legal obligation to hold your job for as long as they did, and let you return out of the goodness of their hearts.

I would DEFINITELY seek the advice of an attorney. It does sound like retaliation to me.

Also, could you go into a little more depth about how you were paid? You mentioned commission. Can you tell me about your hourly and commission payments? How much you were paid? Overtime? etc. There may also be a wage and hour violation there.
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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Wed Sep 03, 2008 9:29 pm

ok, thanks for the help, btw.

when you are paid by "flat rate" it is a type of commission. basically you are given a task or job to do on a car (this type of pay system also is applied to mechanics). there is a "book" (now it is on computer) that says you will be paid "X" hours to complete the job. this is regardless of how long you take to complete the job. if you finish the job before the allotted time is up, you have effectively "beat" the flat rate and you win, both by getting paid "free time" and by getting another job to work on while still getting paid for the first one (like getting double time). if it takes you longer than the allotted time you loose. you are not paid for your time being at the shop, just by the work you perform while at the shop. therefore no overtime or hourly wage.

they decreased my wages by handing out more difficult jobs that took longer and paid less, and dispatching less work to me while the other techs were getting more work, many times leaving me standing around with nothing to do.

1 month ago we went to a team system where everyone on the team pooled their hours and each member received a portion of the hours. i was told by the manager that "no one wants you on their team" way to be a good manager!! "and with out a team for you to be on, you don't have a job" . the next day i was pulled into the office and told i could be on "team a" but i would have to take the lowest percentage of anyone on the team,10%" that was less than the helper that was making 12% with no experience! rather than be unemployed, and not ready to pursue this legally yet, i reluctantly agreed. i knew that this was their last ploy to get me to quit, and had a feeling that it would be no more than 2 checks until something happened. sure enough, 1 month to the day, i was fired yesterday.

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Re: possable discrimination in AZ need advise/ help!

Post  bears00 on Thu Sep 04, 2008 4:01 am

As far as the wages go, as long as you were averaging AT LEAST minimum wage for the regular hours you worked, there isn't an issue. In Arizona, the minimum wage is $6.75 per hour. There may be an issue, however, on the overtime. They would need to compensate you at 150% of your regular rate of pay. You should file a claim for unpaid wages to the Federal Department of Labor.
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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Thu Sep 04, 2008 10:23 pm

thanks, i will get on that

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Re: possable discrimination in AZ need advise/ help!

Post  JoeC (McGruff) on Thu Sep 04, 2008 10:44 pm

If your seeing an attorney about the other issue bring up any unpaid wage issues as well. Arizona statute provides for treble damages (Triple) the amount of unpaid wages, and reasonable attorney fees.

A.R.S 23-355. Action by employee to recover wages; amount of recovery
If an employer, in violation of the provisions of this chapter, shall fail to pay wages due any employee, such employee may recover in a civil action against an employer or former employer an amount which is treble the amount of the unpaid wages.
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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Fri Sep 05, 2008 8:01 pm

thanks. i have an appt to see an attorney on Monday. he seems pretty excited/confident about the strength of my case.

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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Fri Sep 05, 2008 8:08 pm

my manager also offered to write me a letter of recommendation. should i have him write one for me? would it help or hurt my case? i was going to ask the lawyer on Monday, but i could get a faster answer here.

i really don't plan on using them as a reference, and could easily explain why to any future employer.

thanks again for the great help you have been here!

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Re: possable discrimination in AZ need advise/ help!

Post  JoeC (McGruff) on Fri Sep 05, 2008 10:30 pm

Yes get the reference letter it would be difficult for them to argue you were a poor worker if they right a glowing reference letter.
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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Fri Sep 05, 2008 11:01 pm

that's what i thought, figured i should ask though.

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Re: possable discrimination in AZ need advise/ help!

Post  bears00 on Sat Sep 06, 2008 12:14 am

GET THAT LETTER IN HAND ASAP!!!
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Re: possable discrimination in AZ need advise/ help!

Post  JoeC (McGruff) on Sat Sep 06, 2008 12:34 am

Also since you seeing an attorney keep us informed but do not post any material that your attorney believes is privileged. If he feels that any of your posts should be taken down contact an administrator or moderator.
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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Sat Sep 06, 2008 2:13 am

no prob, i like to keep things "under my hat" so to speak. it was really hard to not say anything to my co workers today when i was picking up my tools. most of them know how i have been getting shafted by them after the accident. "so have you found a job yet?" nope "so what have you been doing?" fixing stuff around the house. as much as i would like to "tip my hand" i don't want to give anything away incase it slips to the managment.
you have been a great help on the site though, many thanks once again!

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Re: possable discrimination in AZ need advise/ help!

Post  ecurbe on Mon Sep 08, 2008 7:53 pm

SOOOOO, things get better and better!
on Friday i went to work to collect my "loose tools" and informed my manager (former now) that i would be by on sat to pick up my 2 tool carts, tool box, and welders. i had made arrangements with the service department manager to let me in the body shop between 8 am and 10 am. he was going to be the only person at the dealership with keys and the alarm code to gain access to the body shop on sat. he says OK and away i go. that was at 3:30pm on Friday.

sat morning i show up to move my tools out of the body shop and return with a trailer. i was running late and i didn't want to miss my "time window" to gain access to my stuff. i intended to move the stuff outside, retrieve the trailer, then return and load it up. i show up and walk inside the service service dept. to see my tools lined up on the wall and one of my tool carts standing open with tape on the lid. a quick survey of my stuff tells me that i am missing 3 tools valued at around $500.00 total.
i flip the f*** out to say the least. i locate the shop Foreman for the automotive side. inform him that my tools were moved without my consent, one of my tool carts has been forcibly opened, and i am missing at least 3 tools valued at around $500.00. i regain my composure (thankfully) and proceed to the service manager's office, shake his hand, tell him what has transpired, that he will no longer need to let me into the body shop to get my tools, and that i am missing tools valued at around $500.00, and that they were moved with out my consent. he offers to let me into the body shop to look for the missing tools. i decline saying "i don't want to be accused of stealing the tools, i will contact my manager on Monday and deal with it properly. i wanted to let you know of the situation because you are the highest manager on duty at present".

i return home, unload the trailer, and return it. i then call the police department for the city that the shop is located in and file a police report for theft of my tools. the officer asks if i would like to have him meet me at the shop. i decline stating that i am going to talk to the manager on Monday and see what can be done, i just wanted to cover my bases in case i was asked to leave the property. the officer informed me that if that incurred, "call us with the report number and we will come down there and insure you access to your tools". i also learned from the officer that they are obligated to provide a secure storage place for my property for 7 days after my termination, it is illegal for them to move my tools with out my consent or notification, and it is considered theft for them to remove any of my property from my tool boxes.

sheesh, will this ever end? any more advice?

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