Monday, October 10, 2011

Do I Have a Case for Constructive Discharge? Nearly 50% of People Who Are Unemployed Quit Their Job

What Percentage of Workers That Are Unemployed Have Quit Their Job?

Roughly 48% of the currently identified unemployed actually quit their job.  An unusually high number? No.   That is within range the national norm for the past 5 years.

More Common Than You Probably Thought
Many people quit because they felt they were being treated unfairly, or even abusively, during their employment.  Stated otherwise, many felt they were subjected to a "hostile work environment."

Being Bullied at Work Does Not Necessarily Mean You Work in a Hostile Work Environment - If You Are an At-Will Employee, The Law Does Not Protect Employees From a Bully

One of the most common problems facing the average American employee is the presence of a bully in their midst.  Federal, state and local Anti-Discrimination laws do not make prohibit mean-spirited, rude, obnoxious or even vicious mistreatment at work UNLESS the cause of the mistreatment is the bully's dislike of the employee because of his here age, sex, race, color, national origin, religious beliefs, sexual preference, gender identity or disability.

Does Your Boss Scream at You And Call You Names?
Moreover, if you are, like most of us, "employed at will," there is little protection from such abuse since, if you complain about "garden variety" (i.e. non-discriminatory) bullying, and are thereafter fired by the bully in retaliation, you would not have a claim for wrongful termination or illegal employment retaliation.

What is a Hostile Work Environment Under the Law?  

Are You Being Treated Differently
Because You Are Different?
However, hostile work environments, as defined in the law, are somewhat rare.  Indeed, in order to prove that a hostile work environment exists, one typically must allege the existence of sexual harassment, or a work environment littered with extreme and overt criticisms based upon a person's age, race, sex, national origin, religion, etc.  In addition, an unlawful hostile work environment exists if an employee is subjected for retaliation in response to making a reasonably well-founded complaint about such unlawful behavior.

NOTE:  If you make a "general" complaint that you are being treated poorly, unfairly, etc., then you have not made a complaint of an illegal hostile work environment, and therefore would not have a an illegal retaliation complaint if the company's response was to terminate your employment.

However, if you complain to management that you believe you are being treated differently because you are a woman, a Hindu, etc., and are subjected to an adverse employment action in response, then you have a claim for an illegal hostile work environment and also for illegal workplace retaliation.

Retaliation in Response to Taking Family and Medical Leave or Seeking a Reasonable Accommodation for a Disability Pursuant to the Americans With Disabilities Act is Illegal

You Are Entitled to FMLA Leave
There are some other common scenarios of illegal hostile work environments (or unlawful retaliation, if you will).  The most common arise when an employee is subjected to hostility because he/she took leave protected under the Family and Medical Leave Act (FMLA), sought a reasonable accommodation under the Americans With Disabilities Act (ADA), filed a workers' compensation claim,  sought overtime which they reasonably believed they were entitled to under the law or made a claim protected under a whistleblower statute (there are a few others, and they vary from state to state).

You Are Entitled to
a Reasonable Accommodation
NOTE:  If you are subjected to adverse employment action because you asserted rights under federal laws such as FMLA, ADA or FLSA (the Fair Labor Standards Act, which governs overtime), then you may have a claim for an illegal hostile work environment.  The same is true, at least in many states, if you are "punished" because you filed a workers' compensation claim.

Mere Proof of Cruel, Unfair or Immoral Treatment is Not Proof of an Illegal Hostile Work Environment

However, they key point is as follows:  merely having a cruel, hostile boss, or a gang of insensitive, bullying co-workers is not enough to prove a hostile work environment.  This is the foundation of the employment at will doctrine

NOTE:  If you have to quit your job because of severe mistreatment by management and/or co-workers, you may be entitled to unemployment benefits even if you were not subjected to an illegal hostile work environment.

You Have a Constructive Discharge Claim Only if You Were Subjected to an Illegal Hostile Work Environment

Understanding these principles is important, because a claim of constructive discharge only lies where an illegally hostile work environment left the employee with no choice but to resign.

Truly Illegal Hostile Work Environment Claims Are Relatively Rare

I would say that of the roughly 6 Million people who are currently unemployed due to quitting their jobs, a very small percentage could actually make out a claim of constructive discharge.  While a much larger percentage quit because they found their job intolerable due to the (mis)behavior of their bosses and/or colleagues, the law does not require civility in the workplace.

If You Quit Your Job Because of One of These Scenarios, You May Have a Constructive Discharge Case 

In summary, and generally, if you quit your job for any of the following reasons, you may well have a claim for constructive discharge:

1)  You were the victim of sexual harassment by your supervisor or boss;

2)   You were the victim of sexual harassment by a co-worker and complained to management, but it failed to take steps to fix the problem, which then continued;

3)   You were treated badly at work, and it was made clear that the mistreatment had come about because you were disliked because of your age, sex, race, national origin, religious beliefs, or disability;

4)   You made a reasonable complaint to the company (or to an agency such as EEOC) that you believed you were being treated badly because of your age, sex, race, etc., management responded ineffectively and the environment became even more hostile.  This is known as a unlawful retaliation claim.

5)    You took leave under FMLA, sought overtime to which you believed you were entitled, sought a reasonable accommodation under ADA or filed a workers' compensation claim -- and thereafter were retaliated against by your employer via mistreatment, change of duties, etc.

6) You made a whistleblower complaint, and were thereafter subjected to a hostile work atmosphere.

Generally, unless you have one of these scenarios, you likely do not have a claim for a hostile work environment, and therefore do not have a claim of constructive discharge.

Click Here to read about what effect a voluntary quit may have upon your claim for unemployment benefits, and maybe check out our Video on that topic:

Philadelphia Are Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Representing Pennsylvania's Workforce Since 1991
Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.


Coldo007 said...

The more you stay in this kind of job, the more you realize that a public figure, a major public figure, is a lonely man.
Thanks so much for sharing these intelligent piece with us. It really helps me understand many things.
How I also wish you could link us up to better jobs sites
allot are really in pains, modern day slavery for a job
If anyone is Looking for a international Entry Rig Job specially Nigerian people must check this site Oil & Gas Recruitment opportunity

John A. Gallagher, Esquire - Pennsylvania Employment Lawyer said...

Coldo007 - Thank you - I will endeavor to identify competent job sites and post them from time to time - an excellent suggestion.

Very best of luck.