EMPLOYER DISCRIMINATION; PERSONS PROTECTED – Temporary, Extra, Part-Time, Casual, Seasonal, Intermittent or Probationary Employees

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502.04000 – Temporary, Extra, Part-Time, Casual, Seasonal, Intermittent or Probationary Employees

Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.)