Employer bullying vs. at-will employment.

Factual Questions
1

I know all of the lawyer stuff that you are not and I know that my friend should speak to an attorney etc. This is a question about what cprotections a worker has in an at-will state beyond employment laws. I’m using an example of a friend of mine to put the question into a context.

Employer bullying seems to be on the rise. A friend of mine was continually bullied at work and she eventually took a significantly lower paying job at a different site because she was ineffectual at her current job after her boss (yet again) defamed her character to her supervisor. Here is where it gets tricky.

She actually works for Company X but is contracted out to Company Y. Technically, her “supervisor” at Company Y is a client but is more in a position of her boss. It was this supervisor that bullied her, making her work 50-60 hours a week as an exempt employee, continually making her redo work, etc. I’m sure we are all familiar with workplace horror stories.

More tricky: She told her boss (Company X) that she wanted to transfer to another site. BOTH companies (X and Y) demanded that she return for another week after my friend had already worked 2 weeks after the transition was approved because she felt she owed it to her direct reports.

Most tricky: Company X is willing to sacrafice my friend if it came to a lawsuit since they are dependent on Company Y’s contract. My friend’s real supervisor in Company X has been in the loop the whole time is now persona non grata because of his mishandling of the situation so he may support my friend. My friend filed a complaint with HR when requesting her transfer in Company X but it seems she will be the scapegoat so I woul not count on any real effect of the complaint.

OK, so here’s the real question. I have always heard that in an at-will state, unless you can prove protected-class discrimination or a violation of employment law (like overtime), you are at the mercy of the employer. There is an argument here for constructive termination but I don’t know if taking a $12,000/yr cut is salary is a termination.

But can an employer you are contracted out to bully you and (more importantly) defame you on a factual issue (like work hours) that you can disprove with no repercusions whatsoever? Is her company (Company X) liable for anything considering they forced he to work in a situation that she had already reported bullying AND filed a complaint about?

2

An employer can do to you anything that is NOT ILLEGAL. This is something that is hard for people to understand. I am a straight white male under 40. So that leaves me out of a lot.

An employer can fire you simply because they don’t like you. As long as it’s not, we don’t like you cause your black or a Jew or gay (in area where sexual orientation is a protected class).

Your employer is also free to raiser or lower your salary. I lost my job in June of last year and I was givein the option of stayin on another three months at 2/3 salary or leaving ASAP. I chose to stay, then got unemployment in Sept. I made a good sum so that didn’t effect my unemployment as I got max anyway.

If your employer cuts your salary or reduces hours (which in effect can be the same thing) you might be eligible for unemployment to make up the difference, you may not.

3

One thing I may add, as a guy who’s been out of work since September and working a lot of part time jobs, I can agree 100%, employer bullying is on the rise. Every job I have is like “Shut up and be thankful you’re working.”

4

A “Constructive discharge” is when working conditions become so intolerant, the employee has to leave. While this may or may not provide a Cause of Action is another matter. It relates mostly to being able to collect unemployment. If you quit you generally can not colloect it.

From past research, at least in Ohio, an employee can NOT sue an employer for Intentional Infliction of emotional distress. I could be wrong, would have to check again.

All states except Montana are at will, and MT even has a probationary period.

Yes, you are basically at the mercy of an employer unless you are in Union with a just cause termination clause, or under a private contract with terms of employment.

I remember reading a case here where the Court was quoted as saying the Employer rules the workplace with an “Iron Fist”.

Of course there are exceptions to at will employment, but even if a person claims wrongful discharge and sues, they have to prove it. Employers have business insurance and could care less about being sued. While thier paid attorney collects, yours does not if on a contigent basis, as who has the money up front to pay an attorney.

In Ohio, we recognize, in addition to the better known exceptions to at will work, a Promissory Estoppel exception and a Public Policy exception.

I have been fired before and it was no more than the “Boss” wanting to show how much power they have over the little man.

One “Smart” company I worked for though, termination had to be approved at a 3rd level, the front man had no authority to do it, absent safety rules, etc.
The Model Employment Termination Act passed by the Commissioners on Uniform State Laws, unfortunately has not been adopted by any state.

5

That’s what I thought of as well. I know that there is some employee protection in the way of constructive discharge and workers comp due to stress (I know a teacher that got that) but I had also read about some lawsuits related to workplace bullying and was curious if maybe civilly there were protections not direcly available through employment law.

If she could show “constructive discharge”, could she get some money to make up the difference? I know I know, check with my state’s Department of Labor.

6

I don’t know other than to consult an employment law attorney.

The DOL can’t help unless there is a legal violation by statute.

If she quits due to harassment, she can sign up for unemployment, expect the employer to DENY all alegations though, this is how they operate.

There is very little legal remedy here, sorry to say.

7

‘At will’ means the employer can fire you for any reason other than discrimination clarified by Federal and state law. AFAIK, sexual orientation is **not **a protected class, but religion is (i.e. an employee who gets fired after their boss calls them ‘dirty Jew’, or ‘raghead’ would have a pretty good case). Whisteblowers are another protected class - some1 fired after reporting violations would probably have a good case for suing as well. Other than that, employers can fire you if you show up unshaved to work one day, or you didn’t call the Boss ‘your majesty’. Irrational, but perfectly legal. I was fired from 1 job for pointing out a $$$ balance discrepancy between the transactional and reporting databases.

8

Was there anything shady going on?

9

No, just incompetent. I was reamed for tracing the transaction thru to the transactional database. Turns out my boss (the son of the company CEO) had manually entered the transactions on the reporting database instead of having them go thru the normal process, where they’d be entered into the transactional d.b. & rolled up and applied to the reporting one. In essence, he was embarrassed because he was caught taking a shortcut instead of doing it the right way. It was a family biz & I wasn’t family.

10

Aah. I always find out where all the skeletons are buried wherever I work, just in case I want to make somebody’s life miserable down the road. It’s worked so many times it’s scary. Unfortunately, in this particular case you had no ammunition. :frowning:

11

…and it was my 3rd month there. :smack: Serves me right for thinking a non-family member would get impartial treatment in a family-run business.

12

In Canada there’s an “implied contract” between employer and employee (unless you are in a union or have signed an explicit contract). The courts have rules that a contract has to be fair, i.e. if the employer exploits the the imbalanced bargaining position to not act in good faith, if the written contract is too unbalanced, that contract can be voided.

Legal minimums in Canada usually require 2 weeks’ wages if the dismissal is not for “cause” (i.e. employee serious misbehaviour), and 3 weeks after 5 years. If your job is difficult to replace such as a professional like computers or engineer, separation pay can reach the “rule of thumb” of between 1 week to 1 month for each year of service, to a maximum of 24 months. An employer in Canada can dismiss an employee arbitrarily for any non-protected reason (i.e. same as USA, not for race religion age etc.), but it will cost substantially more than the USA to lay off someone, especially if the worker is a professional and may have difficulty getting a job, especially if the worker has been there a long time… The cost is the biggest discouragement to arbitrary firings. You really have to want the person gone.

But - to get back to OP - “constructive dismissal” is also very difficult to prove in Canada, and also a big gamble. There was a recent case I read where apparently you do not have to actually abandon your job to attempt to claim dismissal sometimes, but this is usually how it works. You claim you’ve been effectively dismissed by the company breaching the implied contract, you stop showing up to work, sue for CD and hope you win. The people who usually win this are fairly high up employees, and it usually involves an obvious demotion or other serious change in money or responsibilities; the logic is that the (implied) contract has been “broken”. Say, a guy who used to be department head suddenly finds he has only 1 direct report, his title changed, and he reports to another department head. Basically he’s been demoted. If he went along with this, he might have trouble a year later looking for a department head job elsewhere; prospective employers would say “you are not currently a department head”. The court would say “if you altered his employment situation this badly, you should have given him the option of separation pay.”

If the company moves the offices to the suburbs from the city, you can’t claim CD. If they move the offices a few hours away, or halfway across the country, where effectively they force you to move house - that can be CD. (Although I did hear of one company that threatened to move its head office to an hour out west in Mississauga from downtown Toronto; several of those who already commuted an hour in from the east threatened to claim CD and the company decided not to find out if they would win.)

Someone who went through a company downsizing related to me what the HR department lawyers told him - the company aims to offer you enough that it’s not worth your while to sue, but not a windfall.

13

City Pages in Minnesota ran an article about someone winning a Constructive Dismissal case against Dish Network in this state and what a huge deal that was. The manager had been a huge bully, punched a hole in a door while yelling at someone, dropped a dish on the ground in front of the guy while yelling at him, etc. His team had higher production rates, but something like 150% higher turnover than the average team.

The article made the point that this was a huge deal because pretty much no one could ever win such a case in the past. That if it stood (Dish network is appealing it), there would be a lot of cases based on the precedent and noting that there have already been three others filed citing it.

Unfortunately, they do not seem to have the article on-line.

14

You can’t sue for “bullying”. However, you MIGHT be able to sue if the company or someone at the company engages in a systematic behavior of singling an employee out for being of a particular race, sex or other protected class.

Yes, it’s called working a shitty job.

You can’t sue because your boss makes you work extra hours. And if she contantly has to “redo work” or is “ineffectual at her current job”, then that raises the question of is there a performance issue?

Yes, you can sue if the company does not pay you for the hours worked (if you are a hourly employee).

Typically you can also sue a company if they retaliate against you for filing a harassment complaint.

That isn’t true in the US and I would be surprised if it were true in Canada. You can’t sue just because the company relocates.

15

True enough in Canada. A company’s relocation, no matter where, does not mean that employees who choose not to relocate have any right to sue.

ETA: Sorry if there is any misunderstanding. What I mean is, you are correct. In the provinces of Canada (be aware employment law is for the most part a provincial matter according to the constitution), “constructive dismissal” has nothing to do with whether a company relocates.

16

There is so much legally wrong and/or inaccurate in your post that I do not know where to begin.

So I wil just ask: md2000, can you support any of this with cites?

17

Hmmm… let’s start this with *real *legal discussion:

http://www.leadingedge-payroll.com/relocations1.html

Of course, in Canada you can give notice instead of dismissal with pay, and allow the person to work out their notice… assuming you think you’ll get productive work out of them in the weeks or months they are collecting pay. usually, a company that “moves head office” will simply lay off their employees and offer them an equivalent job in the new location; they might offer much lower separation apy with the excuse “we offered them a job” and maybe get away with it.

Note too, it’s fairly specialized work like computer workers, engineers, etc. , NOT the store clerks and restaurant employees, who can expect to collect even close to the “one month per year”. The easier to find a new job, the lower your separation pay; but the legal minimum IIRC is 2 weeks in Ontario. And you can get a lot more (google “Wallace damages”) if the judge thinks theemployer acted like a total dick in the firing process. Alleging cause when there really was not one is a quick way to get sued.

I read a number of columns too, by the lawyer who practices in this field and wrote for the Globe and Mail on the topic. He, apparently, worked in the field and knows the law. You should read the legal advice, maybe learn these details.

18

http://www.workopolis.com/content/advice/article/1531-there-is-no-cap-on-the-severance-you-can-be-paid

19

I am sure that my legal colleagues will agree that a “real legal discussion” about employment law involves a discussion of statute and case law, not articles written by HR personnel and Workopolis.

With that being said, let’s begin. First of all, it is incorrect to make a blanket statement about employment law in Canada. As you may know, one needs to examine the division of powers sections of the Constitution (ss. 91-95) in order to determine whether the matter at hand comes under federal employment legislation or provincial employment legislation. Thus, any statement such as, “In Canada, we do this,” means little. Far better to say, “In Ontario…” or “In Alberta…” or “In federally-regulated industries…” Of course, case law can put a finer point on the statutes as well; and in some instances, apply to the country as a whole.

So, your point about “two weeks minimum, rising to three weeks after five years,” is incorrect. For this information, we need to look at the applicable legislation. Here in Alberta, for example, we look to the Employment Standards Code, RSA 2000, c. E-9, s. 56 (“ESC”), where we find six different notice periods, not the two that you allege. There is similar legislation, and likely similar notice periods, in your province.

You are correct that there is a contract, either express or implied, between employer and employee; but where you are inaccurate lies in your discussion of the imbalance between employer and employee. As a general rule, employment legislation was put into place to address this imbalance; this legislation acts as a minimum standard governing employment contracts. Or, if you prefer, it sets out the minimum terms and conditions of the contract; and in fact, acts as the contract itself in the absence of any other agreement. Of course, parties are free to come to an agreement that exceeds the standards, naturally, but as a general rule, they may not agree to less than what is stated in the legislation. Neither can they “contract out” of the legislation: see, for example, the ESC at s. 4.

You also mentioned constructive dismissal. Generally speaking, a case in constructive dismissal is made out when the employer unilaterally makes a material change to the terms and conditions of the employment contract: see, for example, Wilkinson v. T. Eaton Co. (1992), 2 Alta. L.R. (3d) 71, 41 C.C.E.L. 57, 130 A.R. 55 (Alta. Q.B.). This “material change” requirement is quite broad, and can cover many more situations than just demotions–it can include such things as changes to a bonus structure (see, for example, Pathak v. Jannock Steel Fabricating, (1999), 228 A.R. 312 (C.A.)), and can even occur under term contracts (see, for example, Alguire v. Cash Canada Group Inc., (2006), 403 A.R. 173 (Q.B.); aff’d, (2008), 417 A.R. 383 (C.A.)). You will also note from reading Wilkinson that one need not be a “fairly high up employee” in order to win an action for constructive dismissal, as you allege–Ms. Wilkinson was never anything more than a typist and a retail clerk. Naturally, there are many more cases in constructive dismissal; for a survey of some of the more important ones, see Schumacher v. Toronto Dominion Bank, (1997), 147 D.L.R. (4th) 128, 29 C.C.E.L. (2d) 96, 30 O.T.C. 172; which contains a well-organized list of leading cases in constructive dismissal.

You also mention “Wallace damages” for situations where, as you put it, “the employer acted like a total dick in the firing process.” For the record, the case is Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; and it stands for a number of principles, only one of which involves how the employer acted (and you should note that Wallace was unsuccessful in his action on this ground). But the Wallace decision has been whittled away over the years, and now is pretty toothless. The final nail in Wallace’s coffin came with Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39, when the SCC essentially did away with Wallace “bump-ups,” saying that now, employees will receive damages for mental distress only when they can prove actual psychological loss incurred by the employer’s bad faith manner of dismissal. In short, citing Wallace as an authority for lengthy notice periods nowadays won’t do much for your argument.

Should you wish to review the authorities I’ve mentioned, you’ll have no trouble finding them online or in a law library. As you can see, I have included complete citations for your convenience.

20

I’m not sure where you are disagreeing with me except in the details. Yeah, there are 60-plus jurisdictions in North America, all different to some extent.

http://www.fasken.com/files/Publication/d30a1ce8-3299-4a40-b7a6-be8cd717160e/Presentation/PublicationAttachment/bd1d9b61-167c-49ac-a036-c0b1573f24a4/HR_Space_-_December_28_2009_-_Stephen_Acker_and_Jason_Tsoukas_-_ENGL.pdf
After the first year, most provinces have 2 weeks; it gets to 3 or 4 weeks pretty fast.

The workopolis article, if you read, was by Grosman of Grosman, Grosman and Gale, who specializes in the employment law field. The key point there was that even lowly employees can expect a fairly hefty severance pay if they meet the criteria - age, length of employment, possibility of finding another similar job, etc.

I don’t think I said that employees can opt out of legal minimums - just that if there is no written contract, the implied contract takes over. Quite a few cases have hinged on the employer using their unequal position to impose terms that are unconscionable; and the court decision afterwards mentioned the point. After all, odds are if it got to court the employee had somewhat of a case. Employment standards address the grossest of the imbalance, but not the totality of it. In the end, courts have rules the employer, who has the imbalance of power, has a duty of care to operate “in good faith” in dealings with their employee.

Yes, there are a lot of situations where you can consider yourself “constructively dismissed” and I’m sure someday someone will come up with a new one. The trick is whether the courts will agree with you, since every case is diferent. But essentially, a cut in pay (of whatever) or a demotion (real,not just in name) is usually what triggers it. So does moving your place of employment substatially. The big problem is that in most cases, you have to jump ship and then claim you were pushed. If you don’t win it was an expensive gamble.

http://www.moneyville.ca/blog/post/1139088--fired-employee-gets-550-000-in-punitive-damages
http://www.moneyville.ca/blog/post/1131475--wrongfully-dismissed-liquor-store-boss-gets-183-000
http://www.moneyville.ca/blog/post/1005966--fired-worker-gets-2-years-pay-and-235-000-more

All about cases where employees got extra money for bad faith actions by employers - after the 2008 Honda case which theoretically ended “Wallace Damages”. The technicality of Wallace - “we add weeks to your separation pay based on employer behaviour” is replaced by possibly larger cash awards, but the idea is the same; if the employer acts like a dick they run the risk of paying for it. Like the USA, there appears to be no shortage of them in Canada either.

The short answer to the OP is that in Canada, unlike (it seems) the USA, it can cost a lot of money to get rid of an employee unless they are doing something that obviously qualifies as “cause”.