Are Temper Tantrums Grounds for Dismissal?

Q: The small manufacturing company I work for hired a homeless man a few years ago to give him another chance. However, he has frequent temper tantrums in which he throws objects, breaks company equipment, curses and slams doors. Everyone in the office has witnessed at least one incident.

But the man’s supervisor says he can’t fire this employee because the chief executive doesn’t want to give up on this case. What are my legal rights when management is fully aware they have an unstable employee but refuses to do anything about it?

--R.I., Cypress

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A: From what you have said, it does not appear that you have any rights. The man apparently has not threatened his co-workers, and his actions have not caused any harm to others. He merely makes others feel uncomfortable.

Your employer is obliged under state law to hire employees without regard to mental or physical disability so long as they are capable of doing the work. Your employer must also make reasonable accommodations to help them do their jobs. Your employer would risk violating this law if it terminated the employee only because he made others feel uncomfortable.

However, you and your co-workers are entitled to a workplace that is free from violence or threats of violence and is otherwise safe. If the conduct of the employee in question is intentionally threatening or intimidating to his co-workers, or if his temper tantrums have jeopardized the safety of his co-workers, you may have a right to demand that your employer take some action to eliminate such threats or risks. This ultimately could result in the employee’s termination.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Recourse Against Untrue Reference

Q: During a background check by a prospective employer, one of my former supervisors gave out false information about me. As a result, I was not hired for a position for which I had applied and was the leading candidate. What recourse do I have against the former supervisor (who has since left the company) and the former employer?

--D.R., Los Angeles

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A: An employer may incur liability for defamation if disclosures about a former employee are shown to be false and the former employee’s reputation is injured as a result.

The California Labor Code provides some protection for employees who have resigned or have been discharged. Under the code, an employer is prohibited from making any misrepresentation that prevents or attempts to prevent the former employee from obtaining employment. A violation of this section is a misdemeanor. If successfully proved, the former employee would be entitled to triple damages.

However, employers are protected from liability in many situations by what is called a “qualified privilege.” This privilege protects statements, including allegations of dishonesty, that are made without malice about an employee’s conduct to persons who have some reasonable interest in the information.

To overcome this privilege, a plaintiff must prove malice--that the person made the statement with the intention of injuring the former employee.

As a general rule, such lawsuits involve both the company and the supervisor.

Any employee who wishes to bring a defamation claim or an action under the California Labor Code may do so by filing a lawsuit in the local civil court.

Although the employee does not need an attorney to file such an action, he or she would do well to consult with a lawyer before deciding whether to pursue the claim. The attorney will be able to give advice on whether the claim is valid and on other issues, such as whether the employee should sue the individual supervisor and/or the company.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Employee vs. Contractor Status

Q: I recently quit a job over a work-related dispute. Now my employer is saying I was an independent contractor and is refusing to pay salary owed as well as work-related expenses. Is there any alternative besides a lawsuit to determine employee status?

--J.W., Tarzana

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A: You can file a claim with the state labor commissioner’s office, which will hold a hearing. If it is determined that you were an independent contractor, the office will close the case, as it does not have jurisdiction over independent contractors. Your only recourse at that point would be to file a lawsuit.

If the labor commissioner finds that you were an employee rather than an independent contractor and were not paid compensation and expenses to which you were entitled, an order will be issued to your former employer to pay you. That order will become a binding court order if it is not appealed. If it is appealed, a trial will be held in court. If you are successful before the labor commissioner and the employer appeals and loses, the employer will have to pay your attorney’s fees.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626, or e-mail shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.