Right to Work? The Game is Rigged

Two weeks ago, I was fired from my job. It was undeserved, unexpected – and unexpectedly brutal.  I wasn’t fired because I was lazy or because I stole or because I was watching porn on my computer or because I took a nap at my desk.

California is a “right to work” state, which ostensibly means that workers cannot be forced to join a union as a condition of employment, but what it means in reality is that basically an employee can be fired for any fanciful reason your employer can cook up, and there are very few exceptions. One of those exceptions happens to be an open Workers’ Compensation claim. California law says that you cannot be retaliated against or fired simply for filing a claim. The only exception to that rule allows your employer to terminate you if you are given a medical work restriction that the employer cannot reasonably accommodate, such as a restaurant server who is restricted to a sedentary job.

I have an open Workers’ Compensation claim. I was employed as a legal secretary, which required me to type 5 to 6 hours per day, every day. Unsurprisingly, I developed symptoms of carpal tunnel syndrome. At first, my employer was sympathetic and in November, 2010, arranged to have my attorneys use voice-recognition software rather than dictate on tape, which alleviated the symptoms and allowed me to perform well at my job. This simple accommodation solved the problem and allowed me to work without pain. I remained one of the most productive secretaries at the firm. In fact, in March, 2011, 4 months after this change had taken effect, I was given a promotion.

Then, in November, 2011, we were called into a meeting, where we were told that our work assignments were being reshuffled. There was no reason given for the changes, and I was re-assigned to two attorneys who used tape. I requested that I be assigned to attorneys who used voice-recognition software rather than tape, because I knew that hours of typing would reaggravate my carpal tunnel symptoms. My request was refused, and I was given a choice: type or file a claim.

I absolutely did not want to file a claim. Why? Because for the last seven-plus years, I have worked in Workers’ Compensation defense. I worked for five years for a national WC insurance carrier, and my current position as a legal secretary was at a large Workers’ Comp defense law firm. I knew exactly what happened to employees who filed claims against their employers, and I didn’t want to do it. You see, here’s the thing – over and over and over again during those seven years, I had observed the following scenario play out time after time:  1) employee files WC claim, 2) employee starts getting disciplined and written up for tardiness/poor performance/talking on the phone/being on the internet/bad attitude/<fill in the blank>, 3) employee receives poor performance review (justified or not), and finally, 4) employee gets fired.

Of course, the employee is never fired for having an open Workers’ Compensation claim – why, that would be illegal! No, the employee is always fired for some other reason – it is a “right to work state,” after all!

That’s why I didn’t want to file a claim. I objected vigorously to my employer’s demand that I file a claim, because I knew that the next time this scenario played out, I was the one who was going to end up without a job. My employer assured me over and over that, of course there would be no retaliation, that I was just being silly, that they “didn’t operate that way.” Since my only two choices were to go ahead and do the transcription and end up having to possibly have surgery or to file the claim (even though I didn’t want to), I went ahead and reluctantly signed the claim form.

Before the ink was even dry on the claim form, my employer handed me another piece of paper and asked me to sign it. I read it. I was being asked to sign an acknowledgement that I had “violated company policy by being on the internet during work hours.” Well, yes, I had been on the internet; first of all, it was a required part of my job, as I used several sites regularly in the course of my work, and I had only been to personal sites during the times I was clocked out for lunch or breaks, as I believed that was permitted.  I was told that no, I was not allowed to be on the internet during work hours. Period. I was also told that “everyone gets written up” for this, that it was no big deal and that it was simply a formality.

Can you smell the bullshit? I could, and I enquired if this policy was enforced for all members of the firm, including the attorneys. I was assured that yes, yes, absolutely, company policy definitely applied to all members of the firm. Over my objections, and because again, I had no choice, I signed the paper.

I was angry about this, and told them that I felt ambushed. I also renewed my objection about filing the claim because I had moved from step 1 to step 2 of the “File Claim, Get Fired” scenario within a matter of moments.  Could steps 3 and 4 be far behind?

As it turns out, no, they weren’t far behind at all. In January, 2012, I had my annual performance review. I knew my work to be excellent, so I wasn’t sure what to expect. I did get excellent marks on the quality and quantity of my work, but I was also informed that I had an “ongoing problem” with my communications with my fellow employees, the management of the firm and with our clients. I was told that, in October, 2011, I was “counseled” in a meeting with the office supervisor for “being rude to clients.” I was shocked and hurt – I had absolutely no recollection of any such meeting, and believe me – I would have remembered a meeting like that!

After my review, as I was walking back to my desk with the office supervisor, I told her that I had no recollection of the meeting, and she told me that it had never happened, that they had made it up. I was astounded.

And then it sank in. Ding! I had just reached Step 3.

I found out a few weeks later in a conversation with an attorney who was leaving the firm (I had asked him to write me a letter of recommendation) that this exact thing (a made up black mark in her review) had happened to another of the assistants in the firm, and that she had been so upset that he told me that he “had to peel her off the ceiling.”

I had my initial orthopedic assessment for my carpal tunnel on February 22, 2012. My doctor gave me a work restriction of no heavy typing and a 10 minute break from typing every hour. He also recommended an ergonomic evaluation of my workstation. These were not onerous restrictions; in fact, these had been the conditions under which I had been performing my job for over a year.

Then, on March 1, 2012, I reached step 4.

Just after I had clocked out for lunch, I was called into a meeting with the managing partner, where I was told that I was being fired for “violating company policy” for being on the internet and for “using company property for personal use.” Just so you realize what this means, every single time you make or receive a personal phone call from your desk, you are “violating company policy” for “using company property for personal use.” Every time you send yourself a reminder to your personal email address about something you need to bring, or an appointment you have, you are “violating company policy” for “using company property for personal use.” Every time you forward that joke email your co-worker sends you, you are “violating company policy” for “using company property for personal use.” Every time you print out or copy a single piece of paper for your personal use, or doodle on a piece of scratch paper and then throw it away, you are “violating company policy” for “using company property for personal use.”

Why, of course I wasn’t fired for filing a Workers’ Compensation claim. Even though I was one of the best assistants in the firm, I was fired for “violating company policy” for “using company property for personal use.”

The deck is stacked against us these days. Remember that when you argue in favor of “right to work” laws in your state, because you might be the next person who is fired for no reason except that your employer decides they want to get rid of you.