JORGE Vasquez worked as a maintenance technician for Franklin Management Real Estate Fund, Inc. He was paid $10 per hour for 40 hours per week. Jorge’s supervisors regularly instructed him to drive his own truck for work-related errands, such as going to the hardware store to buy items needed for apartments managed by his employer. Every week Jorge told his supervisors that he could not afford to pay for the gasoline and vehicle maintenance, and requested reimbursement. Despite his repeated requests, the supervisors continued to assign tasks that required many miles of driving.
Jorge told his supervisor that he could not “tolerate the work environment of only being paid $10.00 per hour, not being paid for gas and having to drive around town for work without being reimbursed for mileage.” (At $10 per hour, Jorge earned $80 per day. After mileage expenses of about $16.50 per day, Jorge was generally left with a daily wage rate of $63.50 or $7.9375 per hour.) After having been repeatedly refused reimbursement for mileage, Jorge had “no choice but to resign.”
Jorge then sued his former employer to be reimbursed the money he was forced to spend on gasoline and vehicle maintenance. He also sued for wrongful termination in violation of public policy. The employer asked the court to dismiss the case, contending that Jorge does not have a cause of action because he voluntarily quit. The trial court agreed. Jorge appealed.
The Court of Appeal agreed with Jorge. The court found that he has a cause of action for constructive discharge. In order to succeed on this claim, Jorge must show that the employer either created or permitted working conditions that were so intolerable that a reasonable employer would realize that a reasonable employee would be forced to resign.
Ordinarily, an employer’s failure to reimburse an employee for business expenses would not create such intolerable working conditions that the employee would have no option but to resign. But in Jorge’s situation, the amount he was forced to spend on gasoline and vehicle maintenance left him with insufficient money to sustain himself, thus making his working conditions intolerable. The amount of unreimbursed expenses left him earning less than the minimum wage!
The court noted that an employer may, in an attempt to avoid liability for a wrongful termination, “refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit.” If the employer’s conduct “effectively forces an employee to resign,” this is a constructive discharge, and is “legally regarded as a firing rather than a resignation.”
In addition, Jorge should be allowed to claim that his constructive discharge was in violation of public policy. The prompt payment of wages due an employee is a fundamental public policy in California. A refusal to pay an employee the minimum wage or overtime pay is a contravention of that public policy.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.