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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7122
Experience:  Significant experience in all areas of employment law.
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Is a "hostile work environment" (continual harassment, slander

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Is a "hostile work environment" (continual harassment, slander and false accusations) based ONLY on on race, color, religion, national origin, disability, genetics, age or sex? What if it's a case where one specific person (in my case, one of our Board members) is constantly spreading false rumors about me, making unwarranted and serious accusations about me, and continually treating me in an abusive and demeaning way?
I need my job but I don't know how much more I can endure. I have witnesses and the backing of a number of people at work but I have just about reached my limit. It's been almost one year since the harassment began and it gets worse each day. What can I do about my situation? Like I said, I need my job and I believe that if I quit then I cannot draw unemployment benefits.
Any and all adivce would be greatly appreciated.
Submitted: 2 years ago via EmployeeIssues.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to her about your incredibly unpleasant work situation.

To answer your question, a "hostile work environment" claim in the state of California can only arise from conduct based upon an employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation.

Harassment for any other reason, while extremely unprofessional and inappropriate, is not generally illegal, and the courts have made clear that a requirement of "politeness" cannot and should not be legislated into the law.

What is important to stress, however, is that slanderous statements are actionable on separate grounds. You do not need to prove hostile work environment if you can prove slander if your interest is in collecting damages.

A cause of action for slander typically arises when a false statement of fact is made to a third party and that false statement causes damage to the person who is the subject of that statement.

Key to a claim for slander is that the statement be a statement of fact, not merely a statement of opinion. As you are likely aware, the First Amendment protects individuals' rights to free speech, and the law provides great leeway for people to express their opinions, even ones for which there is no apparent factual basis.

Thus, the key to proving a claim for slander is being able to demonstrate that the statements made are objectively false. For example, a statement that "Lisa has embezzled from the company" would be actionable because these things either did or did not occur and there is no room for debate. However, the statement that "This is an incompetent employee" would probably not be actionable because this statement is subjective and a matter of opinion.

Unfortunately, even if an employee is the subject of slanderous statements, that would likely not permit them to voluntarily quit and remain eligible for UE benefits in the eyes of the EDD.

The EDD does permit individuals to collect unemployment benefits if they quit with "good cause," but the test for determining "good cause is an extremely stringent one.

"Good cause" is defined in Title 22, Section 1256-3(b):

"Good cause" exists for leaving work, when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances. Generally good cause for leaving work is decided on the facts at the time the claimant left work. Unless there is a timely connection between any alleged reason for leaving and the actual leaving, the employee has waived what might otherwise justify termination of the employment relationship and has negated the required causal connection between any given alleged reason for leaving and leaving. The claimant may submit several reasons for leaving work, some of which, when considered individually, do not constitute good cause. However, if one reason which is good cause is a substantial motivating factor in causing the claimant to leave work, the claimant's leaving is with good cause.

Furthermore, Title 22, Section 1256-3(c) provides:

Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause.

For a more full explanation of the circumstances in which an employee can voluntarily quit and stil remain eligible for benefits, see this link and scroll down about 70% to the subsection on "Good Cause." http://edd.ca.gov/UIBDG/Voluntary_Quit_VQ_5.htm#Leaving%20Work

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Customer: replied 2 years ago.

Thanks for the information. What if I filed for disability based on stress? I could easily prove that the stress from this one person and her group of friends has greatly affected me. Plus, I live in a very small community, 3,000 residents, where rumors and gossip spread like wildfire and I am quite concerned about my reputation. This same person who bullies and harasses me has been able to drive out three of our best Board members due to her false rumors and accusations against them (documentation and letters from those three members blaming this same person for why they left the Board are on file). I just don't know what to do or how much more I can take. Unfortunately, I need my job but the stress is quite high and has been since last July when this person was voted onto the Board.

So, would disability be possible in my case?

Thanks for your advice.

Sandra

Expert:  Patrick, Esq. replied 2 years ago.
Thank you for your reply.

In order to be eligible for State Disability Insurance (SDI) an individual must, among other things, be "unable to do their regular or customary work for at least eight consecutive days." If you can show that your stress has impacted you to such an extent and prove the other requirements set forth here (http://www.edd.ca.gov/disability/DI_Eligibility.htm) then you could certainly bring an SDI claim.

In addition to SDI, if a doctor declares that your stress and anxiety constitute a "serious health condition," you may be eligible to take up to 12 weeks of unpaid protected job leave pursuant to the Family Medical Leave Act

The FMLA is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of, among other things, an employee’s own serious health condition which prevents him/her from working.

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s work site are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period.

Among other things, an employer can be sued for interfering with an employee’s FMLA leave, denying FMLA leave, refusing to reinstate an employee who timely returns from FMLA leave, requiring an employee to take more FMLA leave than the employee needs, or retaliating against an employee who takes FMLA leave.
For more information regarding FMLA leave, visit this link: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

In addition to FMLA and SDI, in certain very limited circumstances California courts will recognize job-related workers compensation claims. However, insurers vigorously fight these claims and treat them with great skepticism. Further, the burden of proof is on the plaintiff and typically requires them to show that the behavior of co-workers or their employer "shocked the concience." This is a very hard thing to prove. Accordingly, it is quite rare that a workers compensation claim for job induced stress is successful, though it is possible.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
Customer: replied 2 years ago.

Once again, thanks for the info. Unfortunately we are a small non-profit with only 8 employees and as a result we do not fall under the FMLA law. Our Policies and Procedures manual states "time off without pay is strongly discouraged and all requests for time off without pay must be submitted in writing and have prior approval of the Director (in this case, that would be me) or the Board of Directors".

 

So, looks like I'm stuck which is really unfortunate. I'm 68 years old and have worked here at the senior nutrition center as their Exec. Dir. for 3 1/2 years . I have wonderful support from the majority of the members, have managed to keep the center open while others have closed down, and have dedicated up to 80 hours per week, while only getting paid for 20. A small but very powerful and bitter group of seniors, including the Board member who harasses me every day, is making my job impossible to do, my migaines are getting worse and more frequent and the stress is no longer good for my general health.

Anyway, I thank you for your help but see that there's little hope for me, or any other employee in this same or similar situation and I find it sad that there is no help for dedicated employees like myself in this country.

So, If you can think of anything else, please let me know. I still have a bit of hope left.......

Sandra

Expert:  Patrick, Esq. replied 2 years ago.
Thank you again for your reply. Again, I am so sorry to hear about your unfortunate work environment and think it's a shame that more options are not available for individuals in your circumstance.

The options I have described are really the extent of the options that would be available to an individual in your circumstance.

I realize that it's not the best news, but nonetheless I hope that you appreciate knowing what legal remedies and options are typically available under the circumstances, and I do hope that I have answered your question.

Kindest regards XXXXX XXXXX wishes to you.
Patrick, Esq., Lawyer
Satisfied Customers: 7122
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 2 other California Employment Law Specialists are ready to help you

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