constructive termination

[karyn220]

how do i prove to edd that i am unemployed through no fault of my own, even though i was forced to quit du to discrimination? california

 

[I AM ALWAYS LIABLE]

how do i prove to edd that i am unemployed through no fault of my own, even though i was forced to quit du to discrimination? california

My response:

You have one year from the date of the discriminatory act to file your claim under the Fair Employment and Housing Act (FEHA).

A termination of employment by an employer may be either actual or constructive. It is actual when the employer notifies the employee, orally or in writing, that the employment is terminated.

A constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, "I quit," the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation. [Turner v Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 32 Cal Rptr 2d 223, 876 P2d 1022]

In a constructive discharge case, the employee bears the burden of proving by a preponderance of the evidence that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. The requisite knowledge or intent must exist on the part of either the employer or its officers, directors, managing agents, or supervisory employees. However, mere constructive knowledge of the intolerable conditions leading to the employee’s resignation is insufficient to support a constructive discharge claim. [Turner v Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 32 Cal Rptr 2d 223, 876 P2d 1022]

The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job, to earn a livelihood, and to serve his or her employer. The adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed intolerable. Isolated acts are generally insufficient to support a claim of constructive discharge, and poor performance ratings or demotions, even if accompanied by reductions in pay, will not generally, without more, trigger a constructive discharge. [Turner v Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 32 Cal Rptr 2d 223, 876 P2d 1022] Thus, for example, a demotion, even with a reduction in pay, is not in itself enough to constitute constructive discharge. [Addy v Bliss & Glennon (1996, 6th Dist) 44 Cal App 4th 205, 51 Cal Rptr 2d 642, citing Turner v Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 32 Cal Rptr 2d 223, 876 P2d 1022]

The standard by which a constructive discharge is determined is an objective one. The question is whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit. That is, the relevant question is what a reasonable employee would have done under the circumstances. The length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint of a reasonable person, but it is not always dispositive. [Turner v Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 32 Cal Rptr 2d 223, 876 P2d 1022; see also Gibson v Aro Corp. (1995, 2nd Dist) 32 Cal App 4th 1628, 38 Cal Rptr 2d 882 (reaffirming constructive discharge standard established in Turner v Anheuser Busch)]

Constructive discharge often arises in discrimination claims where the victim has complained about discriminatory acts and management has refused or failed to correct the conditions. [See Fisher v San Pedro Peninsula Hosp. (1989, 2nd Dist) 214 Cal App 3d 590, 262 Cal Rptr 842 (surgical nurse terminated employment after employer hospital refused to take corrective action on intolerable working conditions arising from alleged sexual harassment)] In these cases, an objective standard applies, and the employee need not show that the employer subjectively intended to force the employee to quit or resign. [Watson v Nationwide Ins. Co. (1987, CA9 Cal) 823 F2d 360 (Title VII claim)]

Workers’ Compensation Act
Because California’s Workers’ Compensation Act is intended to provide the sole and exclusive remedy in specified areas, the Act may bar common-law wrongful termination actions when:

(1). An employee is terminated because he or she has filed or intends to file a workers’ compensation claim with the employer or otherwise exercises his or her rights under the Act [Lab C §132a; but see City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 77 Cal.Rptr.2d 445, 959 P.2d 752 (court held that Lab C §132a did not provide exclusive remedy precluding FEHA and common-law wrongful discharge claims by employee who was allegedly terminated because of work-related knee injury, and that disability discrimination could form basis of common-law wrongful discharge claim; disapproving cases holding otherwise)]; or

(2). A terminated employee is seeking damages for physical or mental injuries arising out of the termination [Lab C §§3600, 3602 (exclusive remedy provisions); Livitsanos v Superior Court (1992) 2 Cal 4th 744, 7 Cal Rptr 2d 808, 828 P2d 1195]

However, an action for tortious discharge in contravention of fundamental public policy is not preempted by remedies under the Workers’ Compensation Act. [Gantt v Sentry Insurance (1992) 1 Cal 4th 1083, 4 Cal Rptr 2d 874, 824 P2d 680 (action alleging constructive termination for resisting employer’s efforts to induce plaintiff to give false information to DFEH regarding sexual harassment charges filed by coworker)] Also, a damage action against the employer is permitted, though an injury occurs, where the injury is proximately caused by a willful physical assault by the employer. [Lab C §3602(b)(1); see Herrick v Quality Hotels, Inns & Resorts, Inc. (1993, 2nd Dist) 19 Cal App 4th 1608, 24 Cal Rptr 2d 203 (holding that, where supervisor threatened employee with gun and physically assaulted him, physical assault exception to workers’ compensation exclusivity applied)] Moreover, the Workers’ Compensation Act is not the exclusive remedy when an employee is physically injured on the job, and the employer has fraudulently concealed the injury and its connection to the employment. [See Hughes Aircraft Co. v Superior Court (1996, 4th Dist) 44 Cal App 4th 1790, 52 Cal Rptr 2d 514 (Workers’ Compensation was plaintiff’s exclusive remedy because plaintiff had no evidence of employer’s prior knowledge of physically harmful condition)]

Exclusivity has been denied in various other circumstances. [See, for example, Davaris v Cubaleski (1993, 2nd Dist) 12 Cal App 4th 1583, 16 Cal Rptr 2d 330 (defamation claim; however claims for intentional or negligent infliction of emotional distress were barred); Accardi v Superior Court (1993, 2nd Dist) 17 Cal App 4th 341, 21 Cal Rptr 2d 292 (claim of emotional distress following alleged sexual harassment); Jimeno v Mobil Oil Corp. (1995, CA9 Cal) 66 F3d 1514 (district court erred in ruling that workers’ compensation provided plaintiff’s exclusive remedy for his disability discrimination claim under FEHA because there was conflicting evidence as to whether required work restrictions were the result of a work-related back injury or were the result of plaintiff’s non-work related congenital defect; appellate court also found no conflict between plaintiff’s simultaneous claims of discrimination under Lab C §132a and his FEHA claim)]

The FEHA, which is set forth in Gov C §§12900 et seq., is the principal California statute prohibiting employment discrimination. The FEHA covers employers, labor organizations, employment agencies, apprenticeship programs, and any person or entity who aids, abets, incites, compels, or coerces the doing of discriminatory acts. [Gov C §12940]

It prohibits employment discrimination based on race or color; religion; national origin or ancestry; physical disability; mental disability or condition; marital status; sex or sexual orientation; age, with respect to persons over the age of 40; and pregnancy, childbirth, or related medical conditions. [Gov C §§12940(a), 12941, 12945] The FEHA also prohibits retaliation against any person for opposing any practice forbidden by the Act or for filing a complaint, testifying or assisting in proceedings under the Act. [Gov C §12940(f)]

Two administrative agencies, the Department of Fair Employment and Housing (DFEH) [Gov C §§12901, 12930 et seq.] and the Fair Employment and Housing Commission (FEHC) [Gov C §§12903, 12935], enforce the FEHA.

The FEHA generally applies to all California employers and their agents [Gov C §12926(d); 2 Cal Code Reg §7286.5(a)], including the state, its subdivisions, cities, cities and counties, local agencies, special districts or any political or civil subdivision of the state [Gov C §12926(d); 2 Cal Code Reg §7286.5(a)(4)], and nonprofit corporations or associations [2 Cal Code Reg §7286.5(a)(6)]. Private employers are not covered unless they employ five or more persons [Gov C §12926(d); 2 Cal Code Reg §7286.5(a)], unless a discrimination claim involves harassment, in which case the employer is subject to the Act if he or she regularly employs one or more persons [Gov C §12940(h)(3)(A)]. Public employees are not subject to the five-employee requirement. [2 Cal Code Reg §7286.5(4)]

Contact your nearest Department of Labor to request a complaint form. Then, once accepted by FEHA, that will be your proof needed to collect Unemployment Insurance.

IAAL