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Abusive conduct and constructive termination: A new framework under AB 2053?

As of January 1, 2015, California employers with more than 50 employees have to add "abusive conduct" to their required, biannual harassment training for supervisor.

The law defines "abusive conduct" as the:

[C]onduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

On its face, AB 2053 does not create a cause of action for abusive conduct in the workplace. Being the recipient of "abusive conduct" does not (yet) subject a California employee to protection under the Fair Employment and Housing Act, and harassment remains illegal only when it is motivated by a protected characteristic of the victim, such as their race or gender.

However, AB 2053 may significantly alter the long-held definition of "constructive termination" – when an employee quits due to intolerable working conditions and is allowed to pursue remedies as if she were fired. Constructive termination is a common-law creation, and its definition may change relatively quickly.

To establish constructive termination, a former employee must show two things: (1) her working environment was so unusually adverse that a reasonable person in her position would have felt compelled to resign; and (2) her employer either intended to force her resignation or had actual knowledge of the intolerable working conditions.

Courts may soon find AB 2053 lowers the threshold for both elements.

First, currently the intolerable working conditions that give rise to constructive termination must be "sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job." Intolerable working conditions can only be established by a "continuous pattern" of this egregious behavior; "single, trivial, or isolated acts of misconduct are insufficient to support a constructive discharge claim."

Under AB 2053, however, "abusive conduct" is merely "hostile, offensive, and unrelated to an employer’s legitimate business interests." This is not the same as "extraordinary and egregious." Further, under the express language of AB 2053, a single instance of egregious behavior may constitute "abusive conduct." This certainly creates an argument to lower the standard for constructive termination. The argument being, "how could the legislature mandate employers train supervisors to prevent a behavior that, when encountered, an employee must endure?"

Second, under the current standard, an employer must have intended to force the employee to quit or had actual knowledge of the intolerable working conditions. Under AB 2053, employers cannot turn a blind eye to working conditions. If there is are affirmative obligations to train and prevent, would there not also be an affirmative obligation to investigate? Given AB 2053 will courts be more willing to see any abusive conduct as imputing constructive knowledge on an entire organization?

California employers should expect continued legislative attempts to pass a law making bullying an unlawful employment practice. In the meantime, employers can help prevent (or at least mitigate against) constructive termination claims by adding abusive conduct to their anti-harassment training, keeping an open-door policy for workplace concerns, promptly investigating complaints, and obtaining releases from departing employees.

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For more information, contact Kellie Ellermann, CMP, Marketing Specialist at email KLEllermann@mintz.com, call (858) 314-1526, or visit www.mintz.com.

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