The legal importance of making a reasonable effort to maintain employment in a toxic or dangerous workplace

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Good communication with your employer is common sense and it can preserve your rights to bring claims against bad employers even if you quit your job

The forced quit or constructive discharge case

The law gives employees the right to sue employers for forced quits or constructive discharge, but these cases are even harder to win that typical wrongful termination cases.

In order to win a constructive discharge case, the employee needs to show an intolerable work environment and that they made reasonable efforts to maintain employment. From what I see, even if employees can show an intolerable work environment, which is very difficult, they get tripped up by the reasonable efforts to maintain employment requirement.

So, how does an employee show they made reasonable efforts to maintain employment?

One good way to look at what courts consider to be an acceptable level of attempted dispute resolution is to look at the requirements courts have for lawyers involved in disputes about pre-trial investigation or discovery. Before a court will get involved in one of these disputes, they need to see evidence that the lawyers had real discussions about the dispute. Obviously courts want to see documentation in the forms of emails, but they also generally want to see evidence that the parties met or spoke over the phone about the problems.

I think courts apply a similar standard when judging whether an employee made reasonable efforts to maintain their employment. In the era of smart phones, I think courts have an expectation that they will see text messages and or emails documenting discussions with employers.

But courts also know that people can miss emails or texts, so they want to see evidence of phone or an in-person communication. They want to see written and verbal communication attempts. Lawyers informally call this the belt-and-suspender approach.

But even if an employee doesn’t quit, almost all employment laws require employees to communicate with their employers about problems in the workplace. If you have a harassment or discrimination case, employers must be given an opportunity to take remedial action. If you have a disability discrimination or work injury claim, generally you need to work with your employer to accommodate the injury or condition. Employees claiming unemployment benefits for a quit also need to show a reasonable effort to maintain employment in Nebraska.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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