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California Employment Lawyers > Blog > Employment > Is Your Employer Setting You Up for Pretext?

Is Your Employer Setting You Up for Pretext?


It is common practice for many employers to keep an employee file on its employees. Whenever the employee does something wrong, the employer writes that in the employee’s file, and stores it away.

In many cases, when an employee is “written up,” if the infraction isn’t major, nothing actually happens—the employee isn’t fired, he doesn’t have his pay cut, and there is seemingly little or no punishment.

So why does your employer even bother “writing you up?” The answer is that your employer could be discriminating against you illegally, but setting you up for pretext.

Setting Up Pretext

Here’s how pretext works:

Let’s say you complained to your supervisor at work about your employer’s illegal activity, or made a complaint about being sexually harassed. Maybe your employer has shown that it is discriminating against you for being female, black, disabled, older, or any other protected class. Maybe your employer owes you money, and thinks firing you will avoid having to pay you.

In any event, and for whatever the reason, your employer wants to get rid of you for these reasons, but is smart enough to know that it can’t legally fire you for those reasons. But it can legally fire you, for other, legal reasons.

So, your employer starts to build up your employee file with complaints and reprimands and bad notations about your behavior and performance at work. Things that ordinarily, your employer may not care about, and that other employees are not getting written up for.

Maybe you took too long during a restroom break. Maybe you “spoke back” to your supervisor, even though you were just asking a question. Maybe you walked into work a few minutes late. All petty small things, that your employer used to not care about—but now is marking down in your employee file.

Your employer is building an army of negative marks against you, so that when you are fired, your employer can show the world your employee file that is filled with these “bad” things, to show what a “bad employee” you were.

Your employer can now fire you, legally, for legal reasons. All of these petty, meaningless notations or reprimands in your file, are just an excuse—pretext—for the real reason you were fired or demoted, the real reason being an illegal discriminatory or retaliatory reason.

What to Do

You usually can’t stop your employer from writing you up, even for silly or petty reasons. But you should be aware if you see it happening more and more, and for seemingly meaningless or petty reasons. It could be a sign that your employer is looking to get rid of you.

Always ask your employer for copies of any reprimands that are going into your file. If you have to sign any negative information or reprimand that goes in your file, notate your disagreement next to your signature.

And if you suspect reprimands or discipline by your employer may be to hide the fact that it is punishing you illegally, it may be time to visit an employment discrimination attorney.

Contact the San Jose employment lawyers at the Costanzo Law Firm today if you feel you are being set up at work, or punished illegally by your employer.




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