University of California
Type of paper: Thesis/Dissertation Chapter
Fired, laid off or forced out: a complete guide to severance, benefits, and your rights when you’re starting over
The accusation laid against the company by our former employee, constructive discharge, occurs when an employee resolves to quit from a job due to unbearable working conditions introduced by the employer. In our case, this employee has concrete grounds to accuse us of constructive discharge because it was the change of policy that led to the resignation. The production employees who used to work from Monday to Friday are now work on a 12hours shift, for four days a week and others even find themselves working on religious days. An employee who might quit their job due these changes has the legal basis to file a petition against the company for constructive discharge.
Even though title VII of the civil rights act prohibits employers from discriminating employees, it allows the employer to apply different standards of compensation or different working conditions to different employees on the basis of seniority, quantity and quality of work, or the working location of an employee. The employee has, therefore, no grounds to claim that the production workers are discriminated by working under different conditions from those of the office staff. However, the shift system may in one way be against title VII of the Civil Rights act. The act advises employers to consider religious affairs of employees before establishing policies. The current shift is not compliant to this as it is forcing some employees to work on religious days.
Even though a resignation from a job does not attract any unemployment benefits, the company may be liable to pay the employee unemployment benefits, if there is proof of constructive discharge. If there is evidence of unfavorable working conditions laid by the employer, and the employee gave the employer a fifteen days notice and the employer failed to respond, the employee has the legal grounds to begin the filing the case. The resignation notice must have been written indicating all the grievances of the employee fifteen days before the resignation.
The employee has the right to claim to be placed back to the job or be paid for the loss of earnings caused by the dismissal if there is sufficient evidence of constructive dismissal. This is applicable if the employee had served the company for more than 12 months. The main cause of the resignation must be due to the employer’s breach of contract or anything equivalent to it and is enough to warrant resignation and the employer’s conduct show that he/she has no intention of negotiating or has resolved to act unreasonably. If the employee never followed the grievances procedures, the company will consider that as resignation for the employee’s personal reasons but not constructive discharge.
We may still have the option of equipping our legal team with the necessary materials they need, to handle the case in a court of law. This may be expensive to both parties but, if the employee feels it is the only way to handle it, we are left with no choice. After all, the courts are the final place to visit for legal arbitration.
To avoid such cases in our company in the future, I would recommend we introduce a department whose primary responsibility will be getting and addressing the grievances of the employees from the lowest level possible. This department will be informing the managerial team what is the employees’ attitude towards the business. The employees should then be educated on the need to adopt good conflict resolution procedures within the business. This will help avoid the unnecessary cost incurred by either the company or the employee in an attempt to seek legal help from external sources. It is also necessary to revise the shift system and arrange it such that nobody will be assigned a duty on a religious day. This will only be possible after having a meeting with the employees and listening to their suggestions and recommendations. If these recommendations are put in place, we will have greatly reduced the chances finding our company acting contrary to the Civil Rights act of 1964
Busse, R. C. (2005). Fired, laid off or forced out: a complete guide to severance, benefits, and your rights when you’re starting over. Naperville, Il.: Sphinx Pub., An Imprint of SourcebooksTop of Form
Lindemann, B., Kadue, D. D. & Lindemann, B. (2012). Workplace harassment law. Arlington, VA: BNA Books.
S. L., Schwab Willborn, , S. J., Burton, J. F., & Lester, G. L. L. (2012). Employment law: Selected federal and state statutes. Charlottesville, VA: Lexis Law Pub
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