I think FQ is the appropriate forum but mods feel free to move it if not.
A friend was hired to do job X and received two years of exemplary reviews. Last year she had to cover part of job Y which is outside of her original job description (because the person who did job Y complained it was too much work for one person). Her part of job Y is now considered 25% of her duties.
Also last year she got a “temporary” new boss due to an internal shuffle. It was supposed to be 90 days by rule but F rules apparently. Since then her new boss:
Has lied about her performance to his boss. But how to prove that?
Refuses to give her any assistance. Tells her that when other departments want to punt and make her do their work that she should do it. Calls her a complainer when she says all of this extra work he expects her to do affects her time to her duties. Calls her argumentative if she has any sort of dissenting view (note: if she were a man he would have no problem with “dialog”).
Gave her a meh review - barely enough to be acceptable. In the review there are outright lies, half-truths and statements that are purposely out-of-context. When she wrote a reply his boss basically said I get it and I agree but I have to support him - he’s the manager. Of course not in writing.
A promotion came up but she did not apply for it since it is exclusively managing job Y (Note: she is the only person in the department anymore with experience in Y and she managed Y for 30 years before this new job). When asked about that job affecting her position, she was continually blown off and told they’d figure it out once hired. Once hired they immediately made him her new boss so yeah, had she known she would have applied for the promotion.
They now have an ad out to hire two new people to do job X. Remember that? It’s the job my friend is supposed to be doing.
She has had enough and will be giving her two weeks but I’m wondering if she could get unemployment as a constructive dismissal.
I think “provable” is the wrong word in this context. Assuming her employer claims she quit, the onus will be on her to convince the Dept of Labor courtroom folks that it was a constructive termination. It may take multiple iterations with appeals of prior rulings. That was my experience and my employer was pretty blatant and obnoxious about it – here’s my own tale:
I’ve never fired an employee. I have had employees quit and apply for UC, thinking is was an automatic thing. It has been my experience that when I object to their receiving UC, they do not get it. How will she be able to show constructive dismissal?
Depends on the state. It’s difficult to prove with no record of problems recorded with HR or at least a diary of events entered at the time they happened.
The end result could/would be dependent on your location. I would skip the government labour standards, seek advise from an employment lawyer (or 2) and if the lawyer finds it a worthy case seek redress through the courts. Government labour standards will award minimal amount (assuming success). Courts look at things somewhat differently and can award substantially more.
At least that’s how things are where I’m located. But there’s bound to be finicky details under the surface and a lawyer’s office is the place to sort that. Not a message board. Many will give free consults. 30 years with a company could add up to a good bit of severance if the decision goes your friend’s way.
Convincing unemployment that she didn’t really quit but was constructively discharged is going to be difficult. The change in working conditions would have to be so intolerable that a reasonable employee would have no option but to resign - and what that implies is that the involuntary resignation came shortly after the change in working conditions. You aren’t going to be able to convince unemployment that a pay cut was constructive dismissal if you didn’t resign until months after the cut. Even if she had quit immediately after one of the events described , that might not be considered constructive dismissal if unemployment decides there was a legitimate business reason to change her job description or make the person who got the promotion her new boss. And then of course is the issue of complaints - did she ever complain to HR about any of this ? If not , it’s going to be very hard to convince unemployment that she had no choice but to quit if she didn’t even tell HR what was going on. I mean , she can apply for unemployment anyway - they might not contest it but I wouldn’t hire a lawyer if they contest it and unemployment rejects the claim.
She complained to her boss’ boss who was her old boss and they had a good working relationship until the shuffle. The last straw was recent (within two weeks) where they moved her under “Boss in charge of Y” and they just advertised to hire people to do X, effective changing her job from doing X to Y without talking to her.
She has accepted doing the job Y for a while. She cannot suddenly say she is not doing it. Unless removing job X is a significant demotion, she’s unlikely to prove constructive dismissal. (I.e. significant loss of responsibility and/or effective title - you were VP of Sales for 30 people, now you’re VP of “looking at reports” with no responsibilities). The boss’s boss may have sympathized with her situation, but without it in writing - I bet he’d at bet weasel out if it if asked, at worst lie outright. He’s already said his priority is supporting her boss. Plus, not do anything that costs the company. Plus, I bet the UI people will ask her boss about the situation, and what’s he going to say?
Not sure in the USA, but if constructive dismissal is difficult to prove in Canada, I assume less employee-friendly USA would have a worse standard. Usually it has to be pretty blatant - the only one I’ve heard of is “we’re cutting your salary”. back in the 80’s where cutbacks first came along, simply announcing a wage cut was ruled constructive dismissal. (I.e. “everyone’s getting 80% of their wage”) whereas cutting work hours along with pay was OK. (“Everyone takes every other Friday off and 10% cut in pay”)
There’s no factual answer to this, as each claim is considered on a case-by-case basis. If your friend resigns, odds are good she won’t be able to collect unemployment. For constructive dismissal, you need to prove that your employer created a working environment that a reasonable person would find untenable.
Your employer is free to change your job duties at any time. This includes giving you additional duties. Unless they unemployment office believes she was given an amount of work that no reasonable person would accept, they’re unlikely to think this would lead to constructive dismissal.
If taken to unemployment, they might be interested in why the supervisor suddenly lowered her performance ratings compared ot previous years. They might want to see evidence that performance was poor. i.e. Did they put her on a performance improvement plan? Did they document her poor performance? She might have a good chance with this one.
Your employer is free to change the conditions of employment including who your supervisor is. They were under no obligation to tell her their plans for the position or that she would be reporting to whoever they hired. This will not factor into any decision about constructive dismissal. It sucks, but there you go.
Since this involves legal interpretation as well as legal facts, and it is a real-world case and not a simple question of fact, let’s move this to IMHO (from FQ). Any factual information regarding the applicable laws is of course still welcome.