Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, January 18, 2019

No, Constructive Discharge Doesn't Equal A Lawsuit

Every once in awhile someone tells me they were constructively discharged, so they want to sue. They're surprised when I say, "For what?" That's because there’s no such cause of action or claim. Just because you were constructively discharged, that doesn't automatically equal a lawsuit any more than being fired equals a lawsuit.

Constructive discharge is where an employee quits work for good cause. If you are constructively discharged, the courts treat it as if you were fired. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed even though you quit if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. For instance, I’ve seen sexual harassment cases as extreme as rape that weren’t found to have been so intolerable that the circumstances constituted constructive discharge by the employer.

For unemployment purposes, if the company cuts your pay, changes your job duties in a major way, changes your shift, transfers you to a new location, that may be enough to be deemed cause attributable to the employer. But you’d better be sure before you quit if you want to make sure you’ll qualify for unemployment. Sometimes the unemployment office will have a website or have someone you can call to get information. Otherwise, you’ll probably want to be sure of your rights before you quit.

In general I recommend against quitting until you have another job lined up. It’s easier to get a job when you have a job. But if your working conditions are intolerable, for heaven’s sake look for another job.

If your working conditions are intolerable due to discrimination, sexual harassment, failure to pay wages, or something protected by law, complain to HR in writing before you quit and give the company a chance to correct the situation.

My exception to the don't-quit-unless-you-have-another-job rule would be if the work situation is dangerous (rape, assault, unsafe conditions). If that's the case, then get the heck out of there. No lawsuit or potential suit is worth your safety.

Friday, January 11, 2019

Can You Get Fired For Defending Yourself Against An Attack? Probably

The viral video of the woman being physically attacked by a customer at McDonalds over an anti-straw law drew much applause from folks who admired the way the cashier defended herself. However, she's now suspended and faces being fired for not allowing herself to be beaten up.

Should you be able to defend yourself if attacked at work? Common sense says yes, but at-will laws say no. Most employers have zero tolerance for workplace violence, so they fire all employees involved in a physical altercation. Most companies don't want to bother determining who started a fight. If a coworker attacks, I usually recommend workers drop into a fetal and yell for help so they can't be accused of fighting. The same would doubly apply to a customer attacking. Hitting a customer, even if you are attacked first, is a big taboo.

What circumstances would help this employee? There are some things that might save her:

Publicity: For one, a public outcry. A viral video and threats of a boycott if she's fired could go a long way toward saving her. However, there will probably still be a mark on her record and she'll be out if she has any other infraction.

Discrimination: If she can point to an employee of a different race, age, sex, national origin, or other protected status who defended themselves and wasn't fired, she might have a discrimination case.

Common sense: If McDonalds uses common sense instead of applying a zero-tolerance policy, then the company might decide to give her an award rather than punishing her. But corporate common sense in HR decisions is rare. They'd rather impose a draconian standard and err on the side of firing.

What do I think will happen? Well, she's hired a lawyer, so the threat of a lawsuit for negligent security might cool HR's jets. I think she'll be put back to work with a slap on the wrist and a cloud over her head. If I were her, I'd start looking elsewhere for a job.

You probably won't have a viral video to protect you, so my advice about dropping into a fetal and yelling for help still applies in most situations for victims of workplace violence.