In short, constructive discharge means that your job conditions were so bad that you had no choice but to quit.  In appropriate cases, a court will apply employment laws as though you were quit.

As set forth in McGanty v. Staudenraus, 321 Or 535, 557 (1995), there are four (4) elements a former employee must establish to prove that s/he was constructively discharged:

1. The employer intentionally created or maintained specified working conditions;
2. The working conditions were so intolerable that a reasonable person would have resigned;
3. The employer desired to cause the employee to leave or was certain s/he would leave;
4. The employee left as a result of the working conditions.

I get the occassional call from a public employee regarding wrongful discharge or other employment-related torts (infliction of distress, etc.).  To anyone considering taking action against a public entity, please beware of the Oregon Tort Claims Act (”OTCA”).

The OTCA requires that any person asserting a claim against a public body give notice to the public body within a certain time and in a manner that complies with specific statutory requirements.  This time period is very shortly after the first day there has been some discernable injury and the plaintiff has had a reasonable opportunity to discover the injury and the wrongdoer.  The OTCA describes in detail the specific types of notice permitted.

Failure to comply with the OTCA may result in a total loss of claim against the public entity.  Therefore, it is vitally important to strictly comply.  In all cases, I would recommend contacting an attorney to discuss the issue.

Oregon and Federal minimum wage and overtime wage laws do not apply to outside salespersons.  ORS 653.010 and 29 CFR § 541.5.  To be an outside salesperson, the following tests be met:

• The employer hires the salesperson to sell goods, services, or intangible items (e.g., insurance, stocks, bonds, or real estate) away from the employer’s place of business;
• The salesperson customarily performs work away from the employer’s place of business; and
• For federal minimum wage law purposes, the time worked on nonexempt activities does not exceed 20% of the workweek worked by nonexempt employees. 29 CFR §541.5. For state minimum wage law purposes, nonexempt work is limited to 30% of the workweek. ORS 653.010(8).

If you are not receiving overtime or minimum wages because your employer claims you are “exempt” then it is worth your time to check to see if you meet the following tests.  If you do not meet the tests, you should probably call BOLI or talk to a lawyer.

As you might guess, employers generally cannot fire employees for refusing to violate the law.  Also, it is generally illegal for employers to fire an employee for refusing to cover-up the employer’s illegal actions.  Sometimes this is referred to as “whistle-blowing.”

One example is Anderson v. Evergreen International Airlines, Inc., 131 Or App 726, 734, 886 P2d 1068 (1994).  In that case, an airline company employee refused to violate FAA safety regulations and refused to cover-up the company’s past violations.  The employee was then fired.  The court found that the employee’s refusals were the full or partial cause of his termination and that the termination was unlawful.

Bottom line: Employees should not allow employers to coerce them into breaking laws or acting unlawfully.  If such employees are fired for standing up to illegalities, the law has protections the employee can take advantage of.

Oregon courts (and Federal courts) have continually held that employees have a right to be free from sexual harassment. Holien v. Sears, Roebuck and Co., 298 Or 76, 90, 689 P2d 1292 (1984).    From a legal standpoint, sexual harassment is classified as unlawful discrimination on the basis of gender.  OAR 839-005-0030(1).  Sexual harassment may include unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature based on a person’s gender.  The law recoginzes that such conduct creates a hostile, offensive, or intimidating working environment.  OAR 839-005-0030(1)(b).  Especially in cases where enduring sexual harassment is an express or implied term of employment or where submission to or rejection of the conduct is used as the basis for an employment action, employers may be liable to employees for the conduct.  OAR 839-005-0030(1)(a).