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I Have Been Taken Off My Work Schedule but Have Not Been Terminated. Is There Anything I can do About It?

Posted by Caleb A. Miller | Jun 11, 2022 | 0 Comments

Often times employers use what they believe are strategic moves to force an employee to resign, rather than terminate them because employers believe this will prevent an employee from bringing a claim or prevent an obligation to pay unemployment benefits. Many employees have found that immediately after making a complaint regarding a safety issue, discrimination, harassment or incompliance with some other rule or benefit, an employer will reduce the employee's schedule rather than terminate their employment. It is the hope of the employer that the employee will be pressured to find alternative employment and ultimately resign.  This is a form of retaliation.

We have seen that a reduction in schedule is often followed by inquiries from the employer asking the employee if they have resigned or begin pressuring the employee to formally resign so the employer does not have to terminate the employee. This is known as constructive termination. 

The Adverse Employment Actions

Before we dive into the different claims you may have when an employer retaliates against you or reduces your schedule for reasons other than legitimate business reasons, it is important to understand where your claim may come from. In the employment context, often an "adverse employment action" is required before you bring a claim. This shows that the conduct for which you complained of resulted in some negative treatment of you by the Company. The Department of Industrial Regulations has defined Adverse Employment Actions as follows: Adverse actions may include such things as discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote, immigration related threats, and other adverse employment actions. Other actions have been found to be isolation from your peers, consistent unfavorable duties or tasks and many others. 

Retaliation under the Fair Employment and Housing Act

California law expressly prohibits retaliation against an employee who engages in a protected activity under the Fair Employment and Housing Act which can be found in Government Code section 12900 et seq. Specifically, it is unlawful for "any employer ... or person to discharge, expel, or otherwise discriminate against any person because that person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding". 

To establish a prima facie case of retaliation, a plaintiff must show that (1) he or she engaged in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer's adverse action were causally connected. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) An employee who is opposing a form of discrimination or harassment charge only needs to put the employer on notice for what conduct should be investigated. The employee must reasonably believe the activity opposed is unlawful, even if it is later found not to be unlawful. (Id. at 1043, 1047). 

An employee's refusal to follow a supervisor's order that they reasonably believe to be discriminatory constitutes protected activity under FEHA and an employer may not retaliate against an employee on the basis of this conduct. 

If an employer chooses not to blatantly retaliate against you for opposing discrimination or harassment, but instead you find your schedule has become drastically reduced, you may have a claim for retaliation under the Fair Employment and Housing Act. 

(Common Forms of Discrimination and Harassment are Against the Following Non-Exhaustive Protected Characteristics: Race, Age, National Origin, Disability, Pregnancy, Religion, Sex or Gender)
Whistleblower Retaliation

California Labor Code section 1102.5 is the whistleblower retaliation statute states, "An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties." 1102.5(b) follows that an employer or person may not retaliate for the same. 

Again, if you have made a complaint regarding any level of safety or the company's refusal to follow some rule, statute or regulation, and the company responds by reducing your schedule, you likely have a claim for whistleblower retaliation. 

Constructive Termination

Constructive termination is essentially a legal claim providing that although you resigned, you were essentially forced to do so by some act of the employer. This will be seen in the eyes of the law as the employer effectively terminating your employment as no reasonable person would have stayed in the position. This can include a reduction in hours so great that you are forced to find another job. 

To prove a claim for constructive termination the employee must prove “That the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819.

We also find constructive termination cases involve forcing an employee to perform unfavorable tasks within the company that were not typically assigned to that employee, forced reductions in pay or benefits that were not applied across the board, and continued harassment such that the employee felt they had no choice but to resign. 

If you have been subject to a reduction in scheduling that you believe is the result of retaliation as described above, Contact Our Office for a Free Consultation so we may discuss this matter with you and your next steps moving forward. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


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