Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements

Announcement

Collapse
No announcement yet.

Constructive discharge? Texas

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Constructive discharge? Texas

    This is long... sorry.. but I have a photographic memory and can recall every detail about things. Please don't complain about how long this is.

    History:
    A year and a half ago I stated upon being hired that I needed Saturdays off since I do volunteer work. She said that she can make this and possible. She also stated that she cannot guarantee that I will always have Saturdays off, but she will give me at least 1 week to make arrangements for any shift change. My shift was consistent for the past year and a half. The only time it changed was when I needed to cover someone for vacation and then I was given the at least two weeks prior notice.

    Recently:
    My boss has changed my schedule 4 times in the past 4 weeks. She changed my shift from Days Monday-Friday 6:30-3pm to over night 11-7, then Sunday through Thursday, then on last Monday she changed it to Friday-Wednesday. Now, there are 15 other people in my department with the same job title as me, and none of them were subject to any shift change what so ever. It was just me. I had no problem working this past Saturday because I did not need to volunteer this weekend.
    On Wednesday, I went into her office and and asked her why I was being shifted around so much. She said that your hours are subject to change and you have to work the hours I schedule you for. (this was in a very nasty and derogatory tone, like I have done something wrong)
    I said that that isn't an issue for me working the shifts upon my hire you said that you would give me ample time to make arrangements of any shift change and I asked her if I did anything wrong to upset her or if my job performance was in question. She then said I was being insubordinate and I shouldn't undermine her authority.
    I then asked her for a meeting with human resources (this was just to protect myself because she called me insubordinate for just for asking a question) because you are making it really difficult for me to work here and what you are doing would cause any other person to give their two weeks notice.
    The she said that I was threatening her by going to human resources and she will gladly accept my two weeks notice.
    I said I didn't give my two weeks notice, I just want to talk to human resources.
    Then she asked "Are you now your to retract your resignation?"
    I sat and stared at her for about 30 seconds thinking about what just happened or was happening.
    I then said that I really would like to talk to human resources.
    She said that they left for the day (which they did because it was the Wednesday before Thanksgiving) and that she will set up a meeting on Monday.
    Well I worked the new shift and the Saturday.
    On Monday (yesterday) I came in and asked her when we will have our meeting with HR and she said after lunch.
    So I waited until after lunch and she called me into her office. She said that I gladly accept your 2 week resignation and we are letting you go early here is your check for your next 2 weeks, another supervisor will let you collect your things and walk you out.
    I was baffled. Here I was expecting a meeting with HR and now I was being fired? Or resigned? I don't know what to call it.

    After I was walked out, I went back in and talked to HR. She said that at our company we take Verbal Resignations seriously. I said I didn't resign, and explained the whole conversation and situation about the shift change.

    The HR person then informed me that she was aware of the shift changes before hand because my manager came to her to see if she was allowed to change them. She also stated that I would have been fired if I missed one day of the new schedule. I told her I didn't miss any of the days. The HR person said that I gave my verbal resignation. I kept saying that I never resigned, but she didn't believe me and that she has the Legal department backing her. I then asked if I was a problem employee and she said my the quality of my work was never in question and I was a good employee, I just gave my two weeks resignation. (which I never actually did) She said she will gladly write a letter of recommendation to any furure employer.

    Now, I am still in shock and don't really know the hell just happened or what to do, besides file for unemployment and start looking for another job.
    Last edited by hobbesteroo; 12-01-2009, 04:25 PM.

  • #2
    Just because you were told that you could have Saturdays off when possible when you were hired doesn't mean the employer is required to do that in perpetuity. Unless you have an enforceable employment contract, the employer can change your hours/day as business needs change. I agree that you probably weren't fired, but at this point it's all water under the bridge. File for UI and see what happens.

    I do have to say, though, that I think you were being unrealistic in your expectations. You don't need to volunteer, you want to volunteer. In this economy, employees don't get to call the shots.

    And to answer the implied question in your subject line, no, this is not constructive discharge.
    http://www.answers.com/topic/constructive-discharge
    Last edited by Pattymd; 12-02-2009, 04:43 AM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Originally posted by Pattymd View Post

      And to answer the implied question in your subject line, no, this is not constructive discharge.
      http://www.answers.com/topic/constructive-discharge
      Agreed--the Texas Labor Code does not deal with the specific term "constructive discharge". If your thought process is whether you can claim that working conditions were so egregious or intolerable that any reasonable person would have no choice but to quit, you probably want to re-focus on the terms used by the Workforce Commission in determining eligibility for unemployment compensation. It's not nearly so high a bar as constructive discharge criteria.

      TWC uses the idea of resignation for "good cause connected with the work". It's quite subjective, and able to be applied to a broad variety of situations. The determination is made by the State, not the employer, employee,or any other body.

      If, on the other hand, you believe you were involuntarily terminated, you can claim that the employer fired you. Be prepared for the employer to close ranks and deny that.

      Hobbes, the last statement in your posting indicates that you have a good idea of your next course of action--file for UI and look for another job.

      Comment


      • #4
        Originally posted by Texas709 View Post
        If, on the other hand, you believe you were involuntarily terminated, you can claim that the employer fired you. Be prepared for the employer to close ranks and deny that.
        My schedule change really wasn't an issue. I would have worked any schedule that they gave me. I was just giving you the story behind why I went in to talk to my boss. I was just simply asking my employer why the schedule was being changed and my boss was calling me insubordinate for undermining her authority. I don't see how asking questions is being insubordinate, and then asking for a meeting with HR to protect myself from being called insubordinate. I stated that she was making it really difficult for anyone to work there, not just me. I never said I quit or this is my 2 weeks notice. She completely changed my words around to make it seem like I quit.
        The HR department says I voluntarily left the company and that is not the case. I wanted to continue working there. I wouldn't have went back in to try to get my job back if I wanted to resign. I tried everything in my power to continue working there.
        I mean seriously, with this economy, and right around the holidays...why would I quit? The only way I would quit a job is if I had another one lined up or won the lottery. I just feel like they were trying to get rid of me and doing anything in their power to get rid of me and I don't understand why because my work performance was good.

        Comment


        • #5
          Originally posted by hobbesteroo View Post
          I just feel like they were trying to get rid of me and doing anything in their power to get rid of me and I don't understand why because my work performance was good.
          That very well may be true. However, even if it were, it does not make the termination illegal. File for unemployment and say that you were fired. If the employer protests, there will be a hearing, probably by telephone, in which each side gets to tell his own story. Since it would be the employer protesting, the burden of proof (such as it is) would be on the employer to prove to the satisfaction of the hearing officer that either you quit or you were discharged for a reason that would disqualify you from benefits.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

          Comment


          • #6
            Originally posted by Pattymd View Post
            That very well may be true. However, even if it were, it does not make the termination illegal. File for unemployment and say that you were fired.
            I didn't know what to say to the unemployment people. Whether I was fired or not. Thanks for your advice.


            Now I don't how to present my case if the company does try to block unemployment which it does seem like they will do because they were pretty adamant in stating that I quit.

            Comment


            • #7
              Originally posted by hobbesteroo View Post
              I didn't know what to say to the unemployment people. Whether I was fired or not. Thanks for your advice.


              Now I don't how to present my case if the company does try to block unemployment which it does seem like they will do because they were pretty adamant in stating that I quit.
              Well, they'll have to show that to the satisfaction of the hearing officer, who will first ask them for a copy of your resignation letter.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

              Comment


              • #8
                I never gave them a resignation letter.

                Comment


                • #9
                  Originally posted by hobbesteroo View Post
                  I never gave them a resignation letter.
                  That's what I meant.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                  Comment


                  • #10
                    Threatening to quit or the equally charged claim that others would quit over a schedule change, is a bad idea. If you wanted a meeting with HR, why not just schedule a meeting with HR yourself? Arguing about your schedule when you have no problem with that schedule is also not a good idea. It is called picking your battles. If you intend to do as asked, why go through the charade of questioning it and the drama of claiming it is so horrendous it would make one quit if that is not the case?

                    When your supervisor told you to knock it off as you were being insubordinate, that was a big old hint. It clearly means, knock it off, not keep arguing/questioning and insisting on a meeting with HR over something that was legitimately asked of you and which you intended to do. Maybe your supervisor overreacted but so did you. ultimately, to them, it sounded like you were willing to quit over this which is logical because otherwise, why even mention it?

                    File for UC. If it gets to a hearing, be honest and leave out any unnecessary details. Hearing Officers are notoriously short on patience.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                    Comment

                    The LaborLawTalk.com forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on LaborLawTalk.com are opinions and suggestions of members and is not a representation of the opinions of LaborLawTalk.com. LaborLawTalk.com does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.
                    Working...
                    X