when administrative law judge doesn't recognize constructive discharge and protected conduct?

what do you do when you follow all procedure for constructive discharge and therefore unemployment determination of deputy rules in your favor, thus you receive unemployment payments for 8 weeks but then your former employer appeals that determination and you therefore attend that appeals hearing, but the administrative judge refuses to recognize your notice of constructive discharge and the rights you were assured within that doctrine, and instead refers to your notice as your letter of resignation and reverses the determination of deputy's decision, rendering you disqualified from unemployment, not to mention liable for paying back benefits you received, but you are now broke without job and receiving no unemployment to boot?

1 answer  |  asked Jul 31, 2010 11:43 PM [EST]  |  applies to Arizona

Answers (1)

Francis Fanning
Constructive discharge requires proof that a reasonable person would feel compelled to quit due to oppressive working conditions. The Arizona statute that recognizes constructive discharge was not enacted to confer rights on employees but to protect employers from a surprise resignation followed by a claim of constructive discharge. The fact that you followed the notice requirements in the statute does not prove that your decision to quit was a constructive discharge. You still must prove that the conditions were so oppressive that a reasonable person would feel compelled to quit. Apparently the judge was not convinced.
You have the right to appeal the decision of the administrative law judge, but you are limited to the fact record you made at the hearing. Perhaps the appeals panel will agree with you that the working conditions were so oppressive that any reasonable person would feel compelled to quit. But appeals judges give a great deal of deference to the judge who heard the testimony and made whatever factual findings the decision was based upon.

posted by Francis Fanning  |  Aug 1, 2010 2:59 PM [EST]

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