An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged  by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee's conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer's favor. 

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others. 

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

* The conduct represents a conflict or potential conflict of interest (e.g., working for a competitor or engaging in self-employment in competition with one's employer).

* The conduct impairs an individual's job performance (e.g., drop in an employee's productivity because a second job makes the employee too tired to work at expected performance levels). 

* The conduct puts the employee in a position where his judgment or authority can be compromised (e.g., a manager dating a subordinate and having authority for employment decision affecting that individual.) It is important to note, however, that the adverse employment action against the manager should be based on job-related factors and not his off-duty conduct. Such job-related factors may include a loss in confidence in the manager's ability to manage the subordinate; on-the-job conduct, such as  spending  excessive  time with the subordinate with no business justification; or making decisions that negatively affect other employees and could be in violation of the company's sexual harassment policy (e.g., showing favoritism with respect to a promotion). http://www.sanfranciscoemploymentlawfirm.com

Many employment contracts and the majority of the union collective bargaining agreements provide that the employee should not be terminated unless for good cause. It is important to understand what the "good cause" standard exactly means, as the meaning of "good cause" in this instance is quite different from the ordinary meaning of the words "good cause."

In the context of express or implied contracts not to discharge without good cause, "good cause" means "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary, or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.  

Employee misconduct on the job is, of course, good cause for termination. But employers do not need to prove that the alleged misconduct actually took place. "Good cause" exists if the employer reasonably believed the alleged misconduct took place and otherwise acted fairly.

Several California court cases held that the depressed condition of the employer's business and its decision to reduce its staff with the result that an employee's services are no longer needed is "good cause," for discharging employee. Similarly, sale or divestiture of a portion of the employer's business can be "good cause" for terminating the employees involved. 

However, economic reasons for layoff do not automatically insulate an employer from liability for wrongful termination. Where the employee alleges that he was terminated for unlawful reasons, such as discrimination and retaliation, courts will not accept a reduction in force as the conclusory explanation for the employee's termination.

Constructive discharge occurs when an employer engages in conduct that effectively forces the employee to resign or retire. Although the employee may say “I quit,” the employer relationship is actually terminated by the employer’s acts against the employee’s will. As a result, constructive discharge is legally considered the same action as a firing by the employer rather than voluntary resignation or retirement by the employee.

To establish a constructive discharge claim, an employee must prove that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. In determining whether a reasonable employee would feel compelled to resign, courts consider such factors as demotion, reduction in salary, reduction in job responsibilities, reassignment to degrading work, badgering, harassment or humiliation by the employer intended to encourage the employee to resign, offers of early retirement or continued employment on terms less favorable than the employee’s former status.  The employee must further notify someone in a position of authority of intolerable conditions before he may prevail on a constructive discharge claim. Such notice prevents employers from closing their eyes to wrongdoing and permits employers who are unaware of any wrongdoing to correct a potentially destructive situation.

It is important to remember that this standard is objective, and employee’s subjective feeling of disappointment is not enough to claim constructive discharge. An employee is not permitted to quit and sue simply because he doesn’t like something at his workplace.

So, which working conditions are considered “intolerable” and thus grounds to claim constructive discharge? Intolerable working conditions are those which either are unusually aggravated or amount to a continuous pattern of objectionable conduct. For instance, continuous course of harassment, uncorrected by management, can constitute objectively intolerable working conditions.

Normally, a single or isolated acts are generally insufficient to support a constructive discharge claim. But in some cases, even a single incident may be held to be “aggravated” misconduct by the employer; e.g., a crime of violence against the employee, or an ultimatum that the employee commit a crime.

The following conditions have been found to be “intolerable:”

continued harassment of an employee due to his sexual orientation (repeated gay jokes and other remarks);
a supervisor’s continuous “yelling and screaming,” unfair and harsh criticism and threats to fire an employee, uncorrected by management, may constitute objectively intolerable working conditions;
a supervisor’s extended campaign to get an employee fired, including repeated efforts to invent documentation for her termination, frequent reorganization of her duties and demands that she process unlawful orders, may constitute “intolerable” working conditions when the employee’s medical condition is exacerbated by stress.
The following conditions have been found to NOT be “intolerable:”

severe verbal abuse of employee (harsh, unfair criticism) in front of other employees and threats to terminate or demote are not intolerable working conditions unless a continuous course of such conduct is involved;
a poor performance rating or demotion, even when accompanied by a pay cut does not constitute an intolerable working condition necessary to support a claim for constructive discharge;
failure to promote over a long period of time is normally not enough to show “intolerable” working conditions.
The claim of constructive discharge is not applicable to at-will employment. There is no constructive discharge where there is no contractual right to continued employment. In other words, if you are an at-will employee (and you are presumed to be in the absence of a contract between you and your employer or any other evidence of your employer’s promise to continuously employ you for a certain period of time), you cannot have a claim of constructive discharge.

If you are like the vast majority of workers in the United States and in California, you are an employee “at will.” This simply means that your employer may terminate your employment for any reason or no reason, as long as it’s not an illegal reason. Again, an employer can be completely arbitrary in choosing who to fire, and he can simply pull one name out of the list, and decide to terminate his/her employment. 

Termination may be wrongful, however, if it can be shown that the reason why any given worker was terminated was unlawful/illegal. Termination is unlawful if a member of a protected class was terminated from his job position because of being a member of that protected class. Sex, race, disability, gender, sexual orientation and religion are the most common discrimination claims in California among workers, students, and other aggrieved individuals.  

Employment Discrimination may be proven directly or circumstantially. Direct proof of unlawful discrimination requires a testimony of a witness (any third person) as to hearing or otherwise witnessing discriminatory conduct. For example, a co-worker might overhear his boss using the “n” word in the presence of, or towards, an African American worker, who later files discrimination complaint.  Circumstantial proof is a little more tricky. It requires investigation of all facts and circumstances of the environment where a person works to determine whether the employment practices in place are such that they inevitably cause disparate treatment of a protected class of employees. Thus, if an employer imposes a requirement that every new secretary should be able to bench press 150 lbs without any rational reason to have such a requirement considering the nature of the job, this is likely to be a significant evidence of employer’s attempt to prevent women  from applying or getting the position of a secretary on site. 

Discrimination claims are generally hard to prove because they usually come down to proving intent to discriminate (except in disability discrimination and failure to accommodate claims, where the intent to discriminate on the part of the employer is for the most part irrelevant). Often, there are no witnesses to discriminatory conduct, or some witnesses are unwilling to testify against their own employer.

In other cases, finding out whether an employer didn’t treat his employee well or even terminated other employees for similar discriminatory reasons is well worth the effort. With careful investigation of facts, interviewing all the available witnesses who are willing to cooperate and looking at the history of the company’s work and internal procedures, unlawful employment practices such as discrimination may surface and be proven at or before trial. Arkady Itkin, Esq.