Workplace Bullying & Constructive Discharge
December 16, 2012 6 Comments
Most people think that the unemployment office is something like a court of law – impartial.
If they’re in Nevada, they’d be wrong.
I have a friend who was bullied out of a job that she really loved by a new supervisor who was hired from out of state. This supervisor systematically increased my friend’s workload to the point of impossibility, and then exceeded those bounds by actually requring the performance of impossible tasks. She also incessantly barked at my friend as if my friend was a deaf Chihuahua instead of an educated professional.
My friend complained – verbally – to a human resources officer but nothing changed. She verbally complained to members of the senior management team. Nothing changed.
Finally something changed, my friend’s health. When my friend began experiencing heart palpitations and severe anxiety, she felt she had no choice but to submit her resignation.
I encouraged my friend to file an unemployment compensation claim because she was essentially forced to resign. The theory of constructive discharge holds that an employee may be considered fired when the employer makes working conditions so intolerable that a reasonable person would have decided there was no option other than to quit.
We were surprised and encouraged when my friend’s former employer did not contest her claim for unemployment insurance. A reasonable and impartial jurist would interpret this as a tacit admission that her claim was valid. But not the Nevada Department of Employment, Training and Rehabilitation.
The unemployment officer denied my friend’s request for unemployment benefits, and that decision was upheld on appeal.
The initial reason for the denial by the unemployment office appears to be that my friend didn’t complain in writing– she complained verbally but she didn’t file a written complaint.
Of course, there was absolutely no evidence that a written complaint was or is a prerequisite for providing notice to an employer or obtaining unemployment benefits but … hey, pesky details.
The unemployment office “board of review” didn’t bother to give a reason for upholding the earlier denial. Here’s what it said: “After examining the record, the Board declines further review.”
So the bottom line is the state of Nevada denied unemployment benefits to a bullied worker even though the worker’s former employer did not object to the worker receiving unemployment benefits.
Why would the Nevada Department of Employment, Training and Rehabilitation aggressively defend the “rights” of an employer that chose not to assert its rights in the matter?
Why would the Nevada Department of Employment, Training and Rehabilitation take it upon itself to deny benefits to a worker whom almost any reasonable observer would agree was bullied out of her job?
What do you have to do to convince the unemployment office that you are a victim of constructive termination - have a heart attack and die on the job?
It’s a sad outcome for my friend and I personally regret that I encouraged her to assert her rights only to be disappointed by a supposedly neutral arbiter that now appears to be anything but neutral. I thought she’d get a measure of justice after being denied it at her former workplace. I was wrong.
On a macro level, it is depressing when government officials who are in the business of employment, training and rehabilittion show so little understanding of and regard for the problem of workplace bullying. It shows how far we have to go to hold employers accountable for bullying in the workplace.
About pgbarnes
I have an idea- let’s fire the guys who made this decision and then deny them unemployment!
First let’s bully them for six months; destroy their sense of self esteem and erode their sense of mental and physical well-beiing. Generally wreak havoc in their lives. We’ll destroy their financial security. In this economy, there ‘ s not much chance they’ll find good employment. They can approach retirement without a safety net to count on. Maybe they will get sick? Oh oh. No health insurance . Tough break. Then the final blow – no unemployment insurance. But that could never happen to them, could it? One in three or four workers in the United States is bullied in the workplace. It will continue until society exerts pressure on employers to stop it. We’re obviously a long way from that goal in NV. PGB
When my husband lost his job at the city, they fought his unemployment benefits and had a hearing. It was upon reading his boss’s testimony in the hearing transcripts that I realized he had been bullied. So much gossip made its way into that hearing; gossip about me and gossip about him. They allegedly fired him for abusing me (that was the office gossip). His boss also admitted to discriminating against him for being obese and illegally fining him $500 and putting that money into his boss’s travel expense account.
Liars lie. Bullies are liars. My best advice would be to try to retain legal council early on and not face your abuser alone. Bullying doesn’t necessarily end when you leave your job. I got nasty emails and telephone calls from his former boss and the city lawyers for years after his termination. We ended up suing the city for ADA discrimination and settling for legal fees and the promise that they would stop giving him bad/slanderous references. Don’t face your abuser alone if you can help it.
If my husband had retained council early in the process, he could have easily sued for wrongful termination. Get help early if you can.
Too many governmental employees are subject to bullying and perhaps that is the problem. They deal with it so much that they are blind to it when it happens to their clients. This is why education is so important; the government has its hand in every pie, they ought to understand why it tastes the way it does.
I am also a SURVIVOR of excessive employment retaliation, workplace bullying, and constructive discharge in a very hostile work environment for over three (3) full years (2007 through 2010). In my case, it was all just because I was in the wrong place at the wrong time and witnessed workplace sexual misconduct (an office affair) between the Business Manager and the “married with children” Payroll Supervisor (whom he supervised). I took the high road and only shared a confidential verbal disclosure with the HR Director. Within a 3-month period, the HR Director was framed and left employment. From that point forward, the high-level administrators and their sexual misconduct secrets were totally protected by administration and union administrators, and I was a totally incompetent and inept employee with several work demotions with significant paycuts, probation, false reprimands and false and negative evaluations for over three (3)+ full years. I even had to file State of Montana unfair labor practices against the local and state unions, in order to force them to file a retaliation grievance, on my behalf. I was personally determined not to quit and let them win with their bullying sabotage. However, after three (3)+ years, my health also seriously deteriorated, when I ended up in the ER with high blood pressure levels at massive stroke and massive heart attack levels. My medical professional immediately placed me on medical leave (FMLA). However, the employer refused to authorize FMLA medical leave within the 12-week period, which is a federal violation of FMLA. Then, I was further punished with “wrongful discharge” (2010). When I filed for State of Montana unemployment, the review process took several more months. During this time, I was without any income whatsoever. Finally, I called the state unemployment Director and pleaded my case, as I was a single mother with daughters in high school. Within a week, my unemployment was approved, based on wrongful discharge for medical conditions. It still baffles my brain how so many employment administrators (including union representatives) and state agencies will not touch employment retaliation and workplace bullying with a ten-foot pole. It is a hands-off and off-limits hot potato issue. After another two-year wait, the union arbitration decision was not in my favor. Of couse, the arbitrator was spared all of the employment retaliation and workplace bullying evidence. The union lawyer indicated that the complicated and “too messy” employment retaliation and workplace bullying issues, because of the initial sexual misconduct incident, would be addressed in followup documentation after the arbitration hearing. To date, I still cannot get copies of this supposed arbitration documentation. I still plan to keep fighting my personal legal case through civil litigation. “NOTHING CHANGES IF NOTHING CHANGES.” I am also signing up as a State Coordinator to help effectuate positive changes with our State of Montana 2013 legislation in the form of legal bills to become laws, in order to protect employees against employment retaliation and workplace bullying. “TRUTH TO POWER.” Just like the Helen Reddy song, “I Am WOMAN,” (http://www.youtube.com/watch?v=mmifO2sKT7g), We Survivors need to keep telling our true stories and take action against this ongoing WORKPLACE WAR ON WORKERS. Financiall and legally, employers can outlast bullied workers with their constuctive discharge sabotage. However, We Workers are the Majority, and I believe in Strength In Numbers. Collectively, we can have our voices heard across our states and our country. I know that I have promised My Daughters to make things better for this generation of Working Women, as well as their generation of Working Women. QUOTE: “When I despair, I remember that all through history the way of Truth and love has always won. There have been tyrants and murderers, and for a time they seem invincible, but in the end, they always fall — think of it, ALWAYS”. ~ Mahatma Gandhi.
I had this happen to me twice by outside management companies who were based out of state and had no idea what was going on daily in the office. These were Ambulatory surgery Centers and for reason unbeknownst to me, are managed by outside management companies and these outside managers have no clue what is going on. They breeze in and ASSUME they know what happening. They also rarely support the on site management team and then when you have become the next “target”, they will up your work load, become hypercritical, and will make your life a lving hell until you have no choice but to quit OR they will fire you for the most miniscule of reasons. Expect no support from the physician owner/investors as they have no clue either. what this does to ones self esteem not to mention the look of their resume is horrendous. Employers get what they want regardless of the efforts the employee makes. Unemployment is a farce. Stop the bully and the number of umenployment claims will drop drastically.
What a difference a state line makes. I had pretty much the exact same claim in California, and was approved without having to appeal.