Voluntary Quit VQ 440
This section discusses those "working conditions" not covered in other sections, which are connected with the job or job site and which affect the worker.
Title 22, Section 1256-23 (b), provides:
. . . An individual who leaves work due to mere personal dislike, distaste, or minor inconvenience caused by working conditions leaves without good cause. If the working conditions are so unsatisfactory as to be intolerable to a reasonable person genuinely desirous of retaining employment and prior to leaving work the individual has taken steps to preserve the job . . . there is good cause for leaving the work. An individual who has good cause to leave work for intolerable working conditions is not required to seek an adjustment from the employer prior to leaving work if the employer is unable to remedy the working condition or has previously refused the individual's request for adjustment, or the individual knows that the employer has refused the requests of other employees for an adjustment of the same working condition.
The term "working condition" is very general and can refer to anything from the manner of performing the work to the number of bosses. Therefore, it is necessary to first reduce the general term "working condition" to the specifics of the job to which the claimant objected.
Once the true reason of the "working condition" is found, the interviewer must determine if a voluntary quit was the only alternative open to the claimant. The claimant's failure to attempt to preserve the employment relationship prior to quitting may negate any good cause reason for leaving.
In an attempt to resolve conflict the employer may suggest either mediation or arbitration to the claimant before the separation actually develops. If this is the case, alternate dispute resolution is one of the "reasonable steps to preserve the job" available to the claimant; failure to attempt reconciliation through these methods may negate any good cause in leaving.
Mediation may be defined as "turbocharged negotiation," an extension of the negotiating process. The mediator has no decision-making power, but functions as an intermediary between the parties. Mediation occurs in a conference setting and explores the parties' positions privately and in confidence; information shared by one side with the mediator cannot be revealed to the other side without the disclosing party's consent. Mediation takes the "emotional steam" out of a dispute and allows each side to tell its story without fear; it affords a "reality check" for both sides.
Arbitration is a system by which the parties submit their dispute to a neutral third party for resolution; both sides are generally represented by attorneys. To invoke arbitration, the parties agree beforehand or at the time of the controversy that the dispute will be resolved through arbitration; the subject matter of arbitration may also be restricted through written agreement.
Subject matter typically includes breach of employment contract, breach of the covenant of good faith and fair dealing, public policy violations, and various tort (civil wrong) actions; and back pay and reinstatement may be ordered by the arbitrator. It is more formal than mediation, generally requiring formal pleadings before an arbitration hearing is held. Binding arbitration is final upon all parties.
B. Duties or Requirements of Work
Title 22, Section 1256-23(c) provides:
. . . An individual may leave work because the employer's work requirements violate the agreement of hire, impose duties beyond those of the employee's occupation, or reassign work to or from another employee or make changes in the distribution of workload among employees. The leaving of work is without good cause unless the employer's requirements cause undue hardship to or discriminate against the individual worker, or are unreasonable under the circumstances.
It should be remembered, that some phases of working conditions are regulated by law or regulation. The Division of Industrial Welfare issues orders covering such things as ventilation, temperature, rest periods and meal times, drinking water and washing facilities, uniforms and equipment, and dressing and rest rooms. A claimant will have good cause for quitting whenever an employer has notice of substantial noncompliance with the law or appropriate regulation, providing the employer has been given an opportunity to rectify the situation.
- Agreement of Hire
The agreement of hire refers to any agreement between the employer and employee governing the manner of performing the work and the conditions under which the work will be performed. The agreement will usually include, but not be limited to, wages and hours, safety rules, workload and scheduling, break periods, holiday and vacation time, sick leave, promotions and transfers, performance reviews, the hiring process, allowable causes of discharge, and grievance and arbitration procedures.
While the union employee has an express contract of hire in the collective bargaining agreement, the nonunion employee will generally have an implied contract of hire. The implied terms of an unwritten employment agreement give the employer absolute discretion over terms and conditions of employment; he may hire as he pleases and may discharge at will. While unwritten in the main, the terms and conditions of employment, may be explained in employee handbooks or other personnel manuals, and govern the relationship between the employer and the employee.
The fact that an employer may be in violation of the terms of a collective bargaining agreement or established policy set forth in the employee handbook is not necessarily the sole or controlling factor for determining good cause for a quit. Good cause will be based on the reasonableness of the employer's actions. An employer has to make many decisions to expedite his business. Many of these decisions will affect the work of the employees. While it can be argued that good personnel practices would dictate discussing these changes with the employees beforehand, it can also be argued that the employer does have the right to make such changes. Therefore, even though an employer violates an agreement of hire, he/she will be acting reasonably if the employer's action was necessitated by business reasons and the employer's action imposed no undue or unreasonable hardship on the claimant.
- Duties Outside Scope of Employment
Whether an employer's requirements as to duties to be performed is unreasonable will depend upon the relationship, both in kind and degree, between the occupation of the claimant and those duties allegedly outside the scope of his or her employment.
Title 22, Section 1256-23(c) provides the employer's requirements are unreasonable under any of the following circumstances:
- The claimant is required to perform duties beyond his or her physical ability or skills.
- The duties required impose an undue risk of injury or illness upon the claimant.
- The required duties would be demeaning to the claimant in view of the occupation and status of the claimant.
- The employer's requirements are intended to abuse or harass the claimant.
- The primary duties assigned to the claimant entitle the claimant to a higher wage but the employer pays a lower wage level.
- The primary duties assigned to the claimant are for work on a substantially lower skill and status level than the claimant's usual work.
- The claimant reasonably objects to the employer's requirements on moral grounds.
- The employer's requirements will substantially increase the claimant's workload.
- The primary duties assigned to the claimant could cause a loss of proficiency in the skills of the claimant's usual occupation.
Example - Duties Beyond Physical Ability and Risk of Injury:
In P-B-295, the claimant, who was over fifty years of age, was employed as a warehouseman. When he started to work he was required to perform duties in one of three warehouses. As business declined, the employer in a move to save costs, combined all of his warehouse activities into one large plant.
The claimant who had previously been required to lift and stack no more than 300 cases of asphalt and tile weighing from 65 to 80 pounds during a ten-day period, was now required to handle 1,000 cases. Previously he had help from a part-time employee, but the employee had been laid off. The claimant requested part-time assistance which the employer refused. Believing he was physically unable to handle the heavier work, the claimant resigned. The Board stated:
The claimant . . . was initially employed to perform duties which were one-third as heavy as he was required to do for the seven week period prior to leaving. Recognizing his physical inability to continue performing such heavy work over a period of time without possible jeopardy to his health, he requested part-time help. His employer refused this request . . . . In view of these facts and circumstance, we hold that the claimant voluntarily left his work with good cause . . . .
It should be noted that if the claimant voluntarily carried on the extra duties, with no requirement from his employer to do so, or if the extra duties were only temporary, the claimant would not have good cause for quitting. Additionally, even where the employer's requirement is unreasonable, the claimant generally must present his or her grievances to the employer and attempt to remedy the situation prior to quitting.
Example - Demeaning Work Assignment:
In P-B-307, the claimant, a hand painter and decorator, was employed by a pottery company for approximately six months. During this period of employment, working conditions were described by the claimant as "impossible." There was no place for a painter to carry on her decorating and for a while she worked near the kilns where the heat was sickening. During the latter part of her employment, she was moved to a corner with improper lighting. Certain employees related to the owner used vulgar and vile language in the presence of the claimant. On about eight occasions, the claimant complained of these conditions to the employer and was given no satisfaction. These conditions made the claimant nervous, so that she commenced to have headaches and would cry when she got home after work. On occasions when her work was slack she would be assigned to other work such as casting, or finishing, which burned her hands and made it difficult to use them for painting. The final incident arose when the claimant was assigned, in rotation with other female employees, to cleaning the toilets. The claimant resigned when the employer insisted that she perform this duty. In its decision, the Board stated:
The circumstances in this case . . . created a situation which made the claimant's working conditions intolerable. The claimant was employed as a hand decorator. She was not provided with proper working space; she was forced to listen to vulgar and vile language; and she was on occasions assigned to perform tasks not within the scope of her duties. Her complaints to the employer were futile. Considering these facts we hold that the claimant had good cause for voluntarily leaving her work . . . .
Example - Increase in Workload:
The claimant was hired to check automobiles in and out of a storage garage and to collect fees from customers. Because of a shortage of help and in addition to normal duties, the claimant was required to park cars. The duty of parking cars is one which a garage worker might well be expected to perform and could not be considered a substantial change in the claimant's duties.
A leaving of work because of objection to the distribution of work will be without good cause unless the distribution of work caused undue hardship for the claimant or the evidence clearly shows that the employer unfairly discriminated against the claimant in distributing the work.
Example - Loss of Proficiency:
An example of an employee quitting because of a fear of losing proficiency in a skill is the secretary hired to perform stenographic work. However, upon reporting to work, the employee was informed by the employer that he/she would work primarily as a switchboard and radio operator. In this situation the claimant would have good cause for leaving work. Not only would the claimant lose proficiency in her chosen occupation, but the agreement of hire was breached.
It should be noted that, even where the employer's requirement is unreasonable, the claimant generally must present his or her grievance to the employer and attempt to remedy the situation prior to quitting.
C. Employer Rules
A leaving of work because of objection to a company rule, which is generally known and enforced, will be without good cause unless the company rule is unreasonable or, although reasonable, the enforcement of the company rule creates undue hardship for the claimant.
Where a rule is not generally enforced but the employer decides suddenly to enforce it with respect to one employee, that employee may have good cause for quitting on the grounds that the employer's action constitutes harassment. Whether or not the employee will have good cause under such circumstances will depend upon the nature of the rule which is enforced against him.
It is the employer's right generally to establish such rules for his employees as, in the employer's opinion, are necessary for the proper conduct of his business. In most cases, a rule will be judged reasonable solely because the employer considered it necessary for the proper conduct of his business. The right of the employer to control his operations should be kept in mind and the fact that the claimant (or the interviewer) cannot readily see the need for an employer rule, does not mean that the rule is unreasonable. When the reasonableness of an employer rule is in doubt, the employer should be questioned as to why such a rule was needed and put into force.
As an example, an employer may require a certain type of dress in a restaurant as a condition of employment. When investigated, the reason for this rule is that a certain "atmosphere" may thereby be established or in keeping with the preparation and service of food. This is sufficient reason to establish a rule as reasonable.
Occasionally, however, a given employer rule may exceed the normal bounds of reasonableness. When a claimant alleges, or an interviewer has reason to believe, that a given employer rule is unreasonable, it should be tested against the criteria provided in Title 22, Section 1256-23(d):
- Compliance with the rule is impossible for the claimant due to reasons such as physical limitations which are peculiar to him or her and, if the reasons are not apparent, are made known to the employer or the employer's representative.
- A new and unreasonable burden would be imposed on the claimant.
- The rule is not designed to protect or preserve the employer's business interests.
- The claimant reasonably and in good faith believes compliance with the rule would result in a violation of the law, objects or makes a reasonable effort to object to the employer, and the employer makes no reasonable effort to explain the basis for the rule to the employee. Whether compliance with the rule would be a violation of the law is not determinative.
- The claimant reasonably believes compliance with the rule would cause an undue risk of injury or illness.
In P-B-194, the claimant, a salesperson in a department store, had at the time of hire agreed to submit to a polygraph (Lie Detector) test. The test was to be given to any employee or all employees in the event the employer had reason to believe there were untruths on an application or wished to verify the honesty of employees in the event of shortages or thefts from the employer's business in the future. Shortages occurred in the claimants department. She and other salesclerks requested separate cash drawers; the employer refused. The polygraph tests became compulsory as a condition of continued employment. Although the claimant had agreed to submit to such a test a year earlier when she was hired, she refused to submit to the test stating she had not been accused and she felt she should not be required to prove her innocence. She voluntarily left the employment. In its decision the Board ruled as follows:
Section 1963 of the Code of Civil Procedure provides that there is a presumption that a person is innocent of crime or wrong. This is evidence which must be overcome by anyone alleging otherwise. To place upon a person the initial burden of proving his own innocence is unreasonable . . . . Therefore, our position is that a claimant who leaves his work rather than undergo a polygraph test as a condition of continued employment . . . (even though he may have agreed to such a test as a condition of employment) is not subject to disqualification under Section 1256 of the Code. Such a condition should have no bearing upon the claimant's eligibility for benefits under the Unemployment Insurance Code.
Here then is an example of an unreasonable employer rule. The employer left the claimant no option in the matter. The claimant either had to submit to the polygraph test or leave employment, otherwise the claimant would have been discharged. Once having established that a rule was unreasonable, it is immaterial that the claimant had agreed to such a rule at the time of hire.
Even where the claimant would otherwise have good cause for quitting because of the unreasonable employer rule, he or she generally must attempt to remedy the situation prior to quitting in order to avoid a disqualification. However, there would be no requirement that the claimant attempt to adjust any situation where an attempt would be nothing more than an idle gesture.
D. Method, Manner, Quality, and Quantity
It is unquestionably the employer's right to establish methods of performing work, and the quality and quantity standards for that work. A claimant who quits solely because of objection to the manner in which the employer exercised these prerogatives normally would be subject to disqualification.
Additionally, good cause for quitting will not be established when a claimant quits because of a belief that he/she cannot meet the quality or quantity standards set by the employer. The employer is the judge of the suitability of the claimant's work.
Title 22, Section 1256-23(e), provides:
A claimant who leaves work due to an objection to the method or manner of work performance or to the quality or quantity of the work required or to materials used in the work leaves without good cause unless one or more of the following circumstances is present:
- The employer uses a method or manner of work which is not customary and thus reduces or will reduce the claimant's earning power.
- The methods and quality of work are inferior and will adversely affect the reputation and integrity of workmanship which is an essential customary feature of the claimant's usual occupation.
- The claimant will suffer a potential loss of skills due to a low quantity of work.
- The employer substantially increases the quantity of work required without increasing wages. . . .
Where the claimant objects to the methods and quality of the work solely because of pride of workmanship, there will usually be no good cause for quitting. However, a reputation for pride of workmanship and integrity of workmanship is of financial value in some professions and for some artists and skilled craftsmen. For them to do shoddy work would result in definite impairment of their earning power. Good cause for quitting can exist under such circumstances.
E. Co-workers and Management
The claimant may become disenchanted with a co-worker or the employer or the employer's representative for a variety of reasons. In some situations, the phrase "personality conflict" may be given as the reason for separation; in other cases, the co-worker or supervisor may have said or done something specific that caused the claimant to quit.
Title 22, Section 1256-23(f), provides:
A claimant who leaves work due to mere annoyance with or a general dislike to another employee or his or her supervisor leaves without good cause. A claimant leaves with good cause if he or she leaves work due to a course of conduct by another employee or his or her supervisor which subjects the claimant to continued abuse, endangers the claimant's health or safety by such conduct as actual or threatened violence or acts affecting the claimant's mental well-being, causes demands for an unreasonable quantity of work to be produced by the claimant, or unreasonably discriminates against the claimant.
Example - Conduct of Co-worker:
In P-B-297, the claimant was employed for five months as a repair clerk, with more responsibility and more arduous duties than normally assigned to new employees. She felt a fellow-employee was shirking her share of the filing and that she, the claimant, was asked to assume more than her fair share. The claimant asked for transfer to another department; the supervisor reported back the next day that there were no other openings, and the claimant gave notice. The claimant liked the work, but her reason for quitting was the fellow employee's actions; she "got so tired of it." In its decision, the Board stated:
Her principal objection was based upon a belief that a fellow employee was inclined to shirk her fair share of the filing. However, there is now evidence that the claimant was required to assume additional work because of this situation, and it seems reasonable to us that the claimant, as a new employee, should have expected to be assigned to work which was routine in character until opportunities for advancement became available. . . . [W]e conclude that the claimant voluntarily left her work . . . for reasons which cannot be deemed sufficiently impelling to constitute "good cause". . . .
Examples - Conduct of Supervisor:
In P-B-126, the claimant was employed as a shipping and receiving clerk. On conflicting evidence, the Board found that the claimant believed his responsibility in plant operations was comparable to those of the general plant foreman. The claimant contended that the plant foreman consistently interfered with the claimant's personnel, transferred them without notice to other duties, and addressed the claimant in abusive and obscene language; the claimant also contended he was to report directly to the plant superintendent. The plant foreman and superintendent testified at the hearing that the claimant was a s alaried employee holding supervisory status, but his department was subordinate to the plant foreman. The plant foreman denied using obscene language, but admitted to using "harsh" language on occasion although not directed toward any individual. In its decision, the Board found:
There is . . . consistency in the testimony of both the employer and the claimant that the claimant was resentful of supervision and we find that the claimant's primary basis for leaving work was his dislike of accepting instructions from the plant foreman, which the claimant believed placed him in a subordinate position to the foreman. . . . Accordingly, we find that the claimant left work for personal, noncompelling reasons . . . and is subject to disqualification.
However, if the facts had indicated a course of conduct on the part of the co-worker, employer, or employer's representative which amounted to abuse, hostility or unreasonable discrimination, good cause would have existed for the quit.
P-B-139 illustrates an abusive course of conduct on the part of the supervisor. In this case the claimant, a bookkeeper, testified that following her objection to repeated offensive rubbing and touching of her body by her supervisor, which she believed, was intentional rather than accidental, the supervisor then became extremely critical of her work. In addition to yelling and cursing at her, the supervisor also asked extremely personal questions about her relationship with her boyfriend and made derogatory remarks about his appearance. Complaints about this treatment resulted in no improvement in working conditions. The claimant ultimately left work when the supervisor became angered over her misunderstanding of some instructions, whereupon he shoved her and shouted that she was stupid and ignorant. In its decision, the Board stated:
. . . . [E]ven though the claimant may not have been a satisfactory employee and may have made some errors in her work, this did not justify the president's shoving the claimant and yelling at her that she was stupid and ignorant or the other insulting and abusive physical and verbal treatment afforded the claimant. Such supervisorial action and comments upon and prying into the claimant's personal life unrelated in any way to her work can hardly be considered a part of the normal give and take in an employment relationship. When complaints brought only more abuse, it is our opinion the working conditions became intolerable . . . and that good cause existed for the claimant to leave her work . . . .
It should be noted in this case the claimant had been repeatedly subjected to hostile conduct on the part of the supervisor and she had attempted to adjust her grievance prior to quitting. Where the abusive conduct is limited to a single minor occasion, the claimant generally would not have good cause for quitting.
There are two other types of abuse that are strictly prohibited by State and federal laws, one is discrimination and the other is sexual harassment. A complete discussion of these issues is provided below.
Calif. Unemp. Ins. Code, Section 1256.2, provides:
An individual who terminates his employment shall not be deemed to have left his most recent work without good cause if his employer operated so as to deprive him of equal employment opportunities because of that individual's race, color, religious creed, sex, national origin, ancestry, or physical handicap, except that this section shall not apply:
- To a deprivation based upon a bona fide occupational qualification or applicable security regulations established by the United States or this State.
- If the individual fails to make reasonable efforts to provide the employer with an opportunity to remove any unintentional deprivation of the individual's equal employment opportunities.
Title 22, Section 1256.2-1(a), provides:
This section interprets Section 1256 and 1256.2 of the code concerning whether an individual leaves with or without good cause when the leaving of work is due to deprivation by the employer of equal employment opportunities due to the individual's race, color, religious creed, sex, national origin, ancestry, or physical handicap under Section 1256.2 of the code, or due to age, medical condition or marital status or other unlawful basis under Section 1256 of the code. "Employment Opportunities" include, but are not limited to, assignments to jobs, work atmosphere, compensation, including fringe benefits, promotions, transfer, upgrading, rights and duties of employees under work rules, and the terms, conditions or privileges of employment.
The interviewer must first determine the basis of the claimant's complaint, and whether the action complained of is, in fact, against the law. If the complaint is not legitimately based upon a denial of an individual's equal employment opportunity, the separation will resolve itself based upon the specifics of the claimant's complaint.
The claimant, a trainee, has his work regularly documented by his supervisor for evaluation purposes. While the claimant's overall job rating is "standard" and he is regarded as a potentially valuable employee, his errors are pointed out on a daily basis during his probationary period so that he may be aware of areas in which he is weak. The claimant's perception is that the employer is "picking on him," and concludes that his ethnic background is the true reason for the daily counseling session. He voluntarily quits without bringing his complaint to the attention of his supervisor.
The employer's actions have not served to deprive the claimant of any of his legal rights, and the claimant has, in fact, jumped to an unwarranted conclusion. The claimant's quit is without good cause.
The claimant has seniority in terms of length of service and has outstanding skills as assistant office manager. She learns that the employer is looking for an office manager to replace the one who just retired, and with whom she has worked for years. She is familiar with the entire office routine. When she asks that the employer consider her for the job, he tells her, "I can't appoint you." When questioned, he says, "The men won't work for a woman boss; it's out of the question. I'm promoting the sales manager (male) as office manager."
The claimant has attempted to reconcile her complaint with the employer, who stands firm in his intended decision. Her leaving, based on deprivation of equal employment opportunity based on sex, is with good cause.
The claimant, foreign-born and with English as a second language, works as a clerk. Her employer passes her over for promotion to switchboard operator because her English is such that she is nearly unintelligible on the telephone. The employer, so as not to hurt her feelings, has given her no reason for his failure to promote her. The claimant quits, citing "discrimination."
The employer has a bona fide, job-related reason for failure to consider the claimant as a switchboard operator, and his failure to consider her for the opening is not discriminatory.
However, Title 22, Section 1256.2-1(c), does provide for limited exceptions:
. . . . Specifications that are clearly job-related even though based on otherwise prohibited discrimination tests are permitted in the rare case where a bona fide occupational qualification can be justified. For example, if a male actor-employed in the movie industry were denied a particular role in a movie where a woman was necessary for the purpose of authenticity or genuineness, sex would be a bona fide occupational qualification, and leaving work due to the denial would be without good cause . . . .
Title 22, Section 1256-1.1(e), also provides:
If an individual is intentionally and unlawfully deprived of equal employment opportunities by an employer who persists in the deprivation, and the individual leaves work for this reason, there is good cause for leaving . . . even if the individual does not first file a complaint with the state or federal agency with jurisdiction to provide relief for and stop the violation. If the employer's acts are unintentional, however, the individual does not have good cause to leave work due to prohibited deprivation of rights if the individual fails to make reasonable effort to put the employer on notice and give an opportunity to make adjustments. Reasonable efforts are made if the individual takes reasonable steps to call the matter to the employer's attention, with a reasonable time and opportunity for adjustment, and it is not necessary that the individual file a formal complaint or charge with any state or federal agency to meet the "reasonable efforts" condition.
The claimant, newly-married, is passed over for training and eventual promotion because her employer feels she will soon start a family and leave the job. She advises the employer that this is not his concern, and that she might also be run over by a truck in two weeks, but not to be concerned about that eventuality, either. She also advises the employer that she feels he is practicing discrimination because of marital status, and he says, "Tough. That's the way I feel about it." At that point, the claimant quit.
The claimant's leaving is with good cause, inasmuch as she is being denied employment opportunities intentionally and for discriminatory reasons.
The same claimant finds another job similar to the one in the prior example. Her employer schedules all the male employees for Personnel Relations training, but skips over the female employees. When asked by the claimant why he doesn't schedule the women for the training also, he advises her that one female has given notice for a month hence, and two others have indicated they are happy doing what they are doing and do not want advancement. He said, "I didn't think to ask you about the training because you're so young that I'm afraid that nobody would take you seriously in a responsible position. Are you interested?" She indicated that she is, and he replies, "well, I'll schedule you for the next training slot, which will come up next month." Upset that she is not scheduled to the current training class, she quits.
The employer has indicated that he is willing to schedule her for training and was unintentionally practicing discrimination because of her age. Her leaving is without good cause.
Regarding the employer requiring the claimant to discriminate, Title 22, Section 1256-15(e) provides:
If the claimant reasonably believes that continued work will cause a reasonable foreseeable and substantially probable serious risk to his or her morals, the claimant leaving of work for this reason is with good cause. There is a reasonably foreseeable and substantially probable serious risk to morals if the claimant is required to . . . discriminate against minorities . . . .
The claimant, a supervisor in a small office, is asked by her employer not to hire anyone of a specific ethnic group. When the claimant asks why, the reply is, "No particular reason. I just don't trust any one of them." Despite anything she says, he holds to the same policies. Rather than carry out the employer's hiring policies, she quits.
The claimant has quit with good cause, as her employer expects her to act in a discriminatory manner.
The claimant, a noodle salesman, is asked to collect cash for his sales from all new accounts, and those on an employer's prescribed list. The claimant notices that most of those on the prescribed list are minority-owned markets. He quits rather than contribute to what he feels is discrimination.
His employer, however, is entitled to collect payment for his noodles at the time of delivery; some businesses allow discounts for prompt payment, and the markets on the prescribed list may be those who have requested COD deliveries in order to receive a discount for immediate payment. By failing to determine the employer's reason for the policy regarding payments, the claimant has not taken all reasonable steps to resolve the situation prior to quitting, and his quit is without good cause.
- Sexual Harassment
Section 1256.7 of the Calif. Unemp. Ins. Code defines sexual harassment as:
. . . . Unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature when any of the following occur:
- Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment.
- Submission to or rejection of the conduct by an individual is used as the basis for employment decisions affecting the individual.
- The conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment . . . .
Example, Submission Made Implicitly or Explicitly a Term or Condition of Employment:
The employee, an administrative assistant to the director of an agency, was promised promotion during a preemployment interview, to occur within ninety days after hire. Shortly after she started work, the director repeatedly solicited her to join him for after-work social activities, made repeated remarks to her which were sexual in nature, and repeatedly suggested that an affair would enhance her employment status. The employee insisted that the relationship remain on a strictly professional level. Then the director, both alone and in concert with other employees, began a conscious campaign to belittle and harass her, and to strip her of her job duties; her complaints culminated in the employer's decision to abolish her job in retaliation for her refusal to grant him sexual favors. The claimant quit.
The claimant was able to show that retention of her job was conditional upon submission to sexual relations, and her leaving prior to discharge, under these circumstances, was with good cause.
Example, Submission or Rejection Used as Basis for Employment Decisions:
A female police dispatcher, hired by a small police force, took her employer to task for denying her the opportunity to attend the police academy because of her refusal to have sexual relations with her supervisor. Both the claimant and another dispatcher claimed that they were subjected to "harangues of sexual inquiries and vulgarities" from the Chief of Police, who also repeatedly requested that the claimant have sexual relations with him. The claimant complained to the City Manager, who took no action. The Chief suspended the claimant for two days on what was termed a "pretext," that she had brought food into the dispatch room in violation of office policy. He had also indicated that he would not recommend her for the academy unless she would establish a relationship with him. During the same period of time, two of the male dispatchers were referred to the academy. Upset by the employer's attempt to harass her and discredit her, the claimant quit.
Inasmuch as her refusal of favors resulted in an adverse employment decision, and attempts to resolve the situation were not productive, her leaving was with good cause.
Example, Intimidating, Hostile, or Offensive Work Environment:
In P-B-475, the claimant worked as a secretary for a car dealership for three years. Five months prior to her leaving, the claimant was subjected to the first in a series of actions by a coworker. The coworker, who was the top salesperson for the employer, leaned over the claimant's desk, looked down her blouse and made a comment about her cleavage. She told the salesman she did not appreciate the comment, he apologized and left. Several weeks later he began to follow the claimant to her car. He continually asked the claimant if they could go to lunch together. She responded "no" twice and then ignored him. On another occasion he asked if she was wearing panties and, if so, their color. The claimant ignored these comments. A week prior to leaving the salesman purposely bumped into the claimant and knocked her into a door frame, she punched the salesman and turned to walk away when he grabbed her buttocks. Extremely upset about the incident, she advised the owner's secretary and the owner's wife of the incident because she did not feel comfortable discussing the situation with the owner. The secretary advised the owner. The owner talked to the salesman, who admitted purposely bumping the claimant but claimed she had helped the incident along. At work the next day, the claimant asked the owner to call the salesman into the office to straighten out the situation; the owner refused, saying he felt is was a two-way street but the claimant would receive a written apology and a letter would be placed in the salesman's personnel file. On the following Monday, no further action had been taken against the salesman and she had not received a written apology. The claimant did not believe the owner would take action to stop the harassment, so she tendered her resignation. In its decision holding the claimant eligible for benefits, the Board stated:
The issue we address is whether the salesman's conduct created an intimidating, hostile or offensive working environment for the claimant under code section 1256.7(3). The conduct in question ranged from comments about the claimant's body and undergarments to pestering the claimant to accompany him home to sexual battery. The claimant confronted the salesman twice and obtained his apology. The salesman knew that his actions were unsolicited and offensive to the claimant. In the final incident, the salesman deliberately knocked the claimant into a door frame and grabbed her buttocks. This caused the claimant to feel she was being treated like "a piece of meat" and she would never know what to expect next. Under these circumstances, we conclude that a reasonable woman in the claimant's situation would feel that the salesman's acts had created an intimidating, hostile and offensive working environment.
The employer has an obligation to investigate allegations of sexual harassment upon notification that such a condition may exist. While Section 1256.7 of the Code provides an individual must take reasonable steps to preserve the working relationship, if the employer indicates, through actions or words, that it is likely that he/she will not take any steps to investigate the complaint, or take remedial action if such is indicated, the claimant is not required to make the attempt to correct the situation before resorting to a quit. If, for instance, the employer does not take the complaint seriously, the claimant has no recourse but to quit.
Title 22, Section 1256-30 (g), provides:
- A claimant who either resigns or elects to be laid off or discharged rather than accept a transfer to other work has voluntarily left the work. If the transfer is to reasonably related work at a reasonably comparable rate of pay, the leaving of work is without good cause.
- A leaving of work rather than accept a transfer to other work is with good cause under any of the following conditions:
- The transfer is to work unrelated to the last work and also unrelated to any work within the claimant's prior training, experience or qualifications.
- The transfer is to work which would cause the claimant to lose proficiency in his or her highest skill, except that there is no good cause for leaving work if the transfer is a return to work previously performed where the claimant's work in a new position has been unsatisfactory.
- A claimant who leaves work because a requested transfer is refused by the employer leaves work without good cause if the leaving is for noncompelling personal reasons, such as personal convenience, prestige, or self-advancement . . . .
"Wholly unrelated work" is any type of work which does not utilize any of the skills of the claimant, whether those skills were acquired through work with the employer or through prior experience or training. Generally, a transfer from one unskilled job to another cannot be considered a transfer to wholly unrelated work.
In P-B-286, the claimant was employed for over four years as a welder, second class. As a result of a reduction in force, the claimant was offered work as a general helper, an unskilled classification. The claimant refused to accept the demotion and accepted the layoff. The Board held that the claimant quit with good cause because:
We have . . . held that, on a transfer to another job, if the offered work is wholly unrelated to the work last performed by the employee and is also wholly unrelated to any work within the employee's prior training, experience, or qualifications, then the employee has good cause for refusing to accept the work.
In the present case, while it is not established by the record that the offered work was beyond the claimant's prior training, experience, or qualifications, nevertheless it was an unskilled classification and unrelated to the skilled classification of the claimant's primary occupation . . . .
Where a claimant's layoff or discharge occurs because the claimant will not accept a transfer to other work with the same employer, the claimant will be deemed to have voluntarily left his/her work and will be subject to disqualification unless good cause can be established for the refusal.
In P-B-427, the claimant was hired when he was 25 years old. On his employment application, he indicated that he was willing to work anywhere in the United States, but the application did not reveal whether a one-time relocation (in order to be hired initially) was intended, or whether the claimant was agreeing to relocate from time to time as long as he was employed. By the time he reached age 43, he had a wife and two teenage children and a new set of obligations. His employer offered him employment as an operations manager (comparable to his present position), in the Cleveland, Ohio, store because they were preparing to close the store where he worked in Granada Hills. The claimant discussed the transfer with his wife and children, and the family decided they did not want to live in Ohio, although they were willing to relocate anywhere in California or even in the western states. The employer contended that, under the original agreement of hire, the claimant had a continuing obligation to transfer to other areas to preserve his employment. The claimant argued that willingness to relocate, based on an 18-year-old employment application should not bind him permanently and irrevocably to accept transfers regardless of his circumstances. In its decision holding the claimant had good cause for refusing the transfer, the Board stated:
A transfer that requires relocating has a much greater impact than one that merely makes commuting more difficult. It affects not only the claimant but, as in the case at hand, an entire family, which would be uprooted and required to adjust to a new environment.
The claimant was not unreasonable. He was willing to accept a transfer to any part of California, or even to another western state. But he and his family felt that it would be asking too much of them to move 2,500 miles to a very different environment. In our judgment these reasons were serious and compelling, not trivial or frivolous.
The Board also commented that their decision did not mean that every refusal of a long distance transfer would constitute quitting with good cause. The factual circumstances of each case would have to be carefully considered and evaluated.
In discussing eligibility principles to be considered when a claimant has left work because of a lack of equipment to do the work or as a result of the employer's defective equipment, Title 22, Section 1256-13, provides in part:
(b) An employee who leaves the most recent work due to the lack of equipment necessary to do the work has voluntarily left with good cause if the following conditions are met:
- It is the employer's duty to furnish the equipment.
- He or she complained to the employer of the lack of necessary equipment and the employer took no steps to remedy the situation.
(c) An employee who leaves the most recent work because the employer has furnished improper, inadequate, or defective equipment which causes an undue risk of injury or illness to the employee, or because the employee is subjected to reprimands for improper work due to such equipment, or because the employee's piece-rate remuneration is reduced due to reduced production caused by such equipment, voluntarily leaves with good cause if the employee prior to leaving took reasonable steps to complain to the employer concerning the equipment and the employer took no steps to remedy the situation.
In P-B-298, the claimant, a truck driver, had complained to his supervisor several times because of mechanical difficulties he was having with the truck assigned to him. The emergency brake was disconnected, the foot brake was inadequate and, on the last day he worked, the battery was so low he had to crank the truck in order to start the motor. While he was cranking the motor, the truck slipped over the block he had placed under the rear wheel to hold it and backed into a warehouse building. The claimant returned the truck to the terminal and waited about two hours for his supervisor to return so that he could inform him of the occurrence. The supervisor did not return and the claimant left after telling other employees he was quitting. In holding the claimant eligible, the Board stated:
. . . . [T]he defective condition of the emergency brake was such that operation of the truck was in fact unsafe. . . . Since . . . (the claimant) had on several occasions complained of the defect to his superior without result, we conclude that the claimant had taken all reasonable steps to remedy the situation prior to the time that he voluntarily left the employment . . . . (In) view of his past experience the claimant was warranted in assuming that nothing would be done were he to make further complaints as to the condition of the truck, and . . . consequently, he had good cause to terminate the employment . . . .
This decision probably would have been reversed if the claimant had not called the employer's attention to the brake problem prior to quitting. It frequently happens that an employer would have no way of knowing that machinery was functioning in a manner which might be detrimental or harmful unless notified by the employee.
Improper equipment can be just as hazardous as defective equipment. A hypothetical example of a case in which a claimant might quit because of lack of proper equipment could be that of a service station attendant who was required to change tires on heavy trucks using an ordinary car jack. Since this equipment is not designed to lift heavy trucks, there would be danger of it allowing the truck to fall and injure the person who was working on it. Provided that the claimant had previously complained about the lack of proper equipment to the employer and nothing had been done about it, the claimant would be justified in quitting rather than risking his or her own safety working under such hazardous conditions.
Occasionally claimants will quit because of inadequate equipment even though the use of the equipment entailed no hazards. In such cases, the claimants usually object to the inconvenience or extra work connected with the use of the inadequate equipment. In most cases, such quits will be without good cause. However, if a worker is continually subjected to reprimands and criticisms for improper work which actually is due to inadequate or defective equipment, and the employer refuses to replace or repair the equipment, the worker will generally have good cause to quit.
In some occupations and industries, it is customary for the worker to furnish his or her own tools or equipment. In such cases, the employer's requirement that the claimant furnish such equipment, as is necessary to perform the job, would be a condition of hire. Periodically a claimant will quit because he or she is unable or unwilling to replace equipment which has worn out or has been stolen or damaged. In these cases, good cause for quitting will be determined by how compelling the claimant's reason is for not replacing the equipment.
H. Disciplinary Action
Title 22, Section 1256-7(b), provides:
. . . The employer has protectable interests and the right to take reasonable corrective disciplinary action against employee infractions of employer-promulgated reasonable rules, or reasonable employer expectations which relate to standards of behavior, performance, and care which are:
- Work-connected or related to the employee's duties and obligations to the employer's interests, which include economic interests, day-to-day business operations, business good will and reputation.
- Reasonable when measured against local customs or practices in similar business or industries.
Title 22, Section 1256-7(c), provides:
Disciplinary Action by Employer. Employer discipline commonly takes the form of reprimand, criticism, changes in working hours, reduction in wages, reassignment or transfer, restitution for employee-caused losses due to culpable negligence or willful dishonesty, or threats of firing.
Title 22, Section 1256-7(d), provides:
Unreasonable Employer Disciplinary Action as Good Cause for Leaving Work. If the employee leaves work in response to corrective disciplinary action by the employer, the leaving is with good cause if the employee prior to leaving did everything that could reasonably be expected of a person genuinely desirous of preserving the employment relationship, and the employer's disciplinary action is unreasonable because any of the following conditions exists:
- The employer disciplined the employee for an act or conduct that was not work-connected or detrimental to the employer's interests.
- The employer disciplined the employee for violating an employer rule of which the employee had no actual or constructive knowledge.
- The substance of the disciplinary action or the manner in which it was administered was excessive or unreasonable under the circumstances.
- The employer's disciplinary action violated the employee's constitutional guarantees.
- The employer disciplined the employee for failure to comply with requirements which imposed new or unreasonable burdens on the employee or which would require a violation of law.
- The employer's disciplinary action imposed an undue risk of injury or illness upon the employee . . .
- The employer engaged in a pattern of hostility or abuse towards the employee.
- The employer demanded restitution for shortages, breakages, or loss of equipment which was either of minor consequence or the result of an isolated incident of mere inefficiency, inability of incapacity, inadvertence or error, or ordinary negligence, and not due to the gross negligence or willful act of the claimant, or the amount of restitution required to be paid at any one time is unreasonable in view of the claimant's financial circumstances.
- The employer's disciplinary action did not timely follow the employee's act or omission. Failure to act promptly may condone or excuse the offense.
In P-B-229, the claimant, because of an automobile breakdown, was late in returning from lunch which resulted in a reprimand by his supervisor. The claimant objected to the attitude of his supervisor in the discussion which ensued whereupon he quit without informing his supervisor that he had a broken spring on his automobile. The Board ruled that the claimant quit without good cause stating:
. . . . [T]here is nothing in the record to indicate that the substance of this reprimand or the manner in which it was given to the claimant was unreasonable. Neither can we find that the course of conduct on the part of the supervisor amounted to such hostility or harassment as to furnish the claimant with good cause for quitting.
Since the claimant who leaves work because of the employer's disciplinary action is the moving party to the separation, he or she is eligible only if a real and compelling cause for the action can be established. If it is found that the substance of the disciplinary actions and the manner in which it was given were reasonable, good cause for leaving does not exist.
In P-B-300, the claimant did establish real and compelling cause for her action. The claimant worked as a bookkeeper for a small insurance firm. She quit that employment because the employer repeatedly criticized her in a sarcastic manner in front of customers; some of the criticism was caused by errors made by the claimant in her work, but some criticism concerned matters not attributable to the claimant and some concerned matters wholly unrelated to the claimant's work. Occasionally, the claimant left the employer's office in tears. Three witnesses testified on behalf of the claimant. In finding the claimant eligible for benefits, the Board stated:
We have held in prior decisions that a leaving of work impelled by mere dislike for a supervisor, where the facts fail to indicate a course of conduct on the part of the supervisor amounting to abuse, hostility or unreasonable discrimination, does not constitute good cause . . . . However, the record established that the conduct of the claimant's employer in the instant case was abusive and hostile, moreover, this conduct was repeated on numerous occasions. Under the circumstances this constituted a compelling reason for the claimant to leave her employment . . . .
Thus, if undue embarrassment, or harassment is caused by continual criticism, in contrast to a single instance of criticism, good cause for leaving does exist. However, if the employer's criticism was an isolated incident rather than a continuing course of conduct the Board would probably have ruled that the claimant quit without good cause.