Constructive Discharge

What is Constructive Discharge?

Constructive discharge is synonymous with constructive termination. Constructive discharge occurs when a hostile workplace or an intolerable employment situation leads an employee to feel there is no other choice than to resign. 

An individual's horrible experience with separation is induced by its involuntary nature. They often cite unfair pay practices, lack of training opportunities, and poor management as reasons for voluntary departure.

Legal Requirements for Constructive Discharge

While no single state or federal law currently exists forbidding "constructive discharge," the US Labor Code does provide remedies for employees who are forced to leave their jobs. 

In all cases, it is still de facto illegal under the law. Moreover, the definitions people have for "constructive discharge" depends on the laws on the books, making it a potentially illegal act.

Constructive discharge cases entail the accuser bearing the burden of proof. Termination will not count as a constructive discharge unless and until it passes a three-part test established by the Equal Opportunity Employment Commission. 

• To be considered intolerable, the complainant's working conditions must have been unbearable to a reasonable person.
• The complainant must have been discriminated against in order for the working conditions to be intolerable.
• A complainant's involuntary resignation must have been due to intolerable working conditions. 

While reasonable is sometimes a subjective notion, labeling an individual a constructive discharge is reserved for cases where intolerable working conditions violate one or more labor laws, such as those listed above.

Fair Constructive Discharge

Though some situations are legally defined as constructive discharges, the circumstances that caused an employee to resign are not considered constructive. Some example of a situation that does not meet constructive discharge includes:

• Employees were equally affected by a change in schedule.
• If mandatory overtime is legal in your state or reduction in hours will be implemented.
• If expectations are not met, you may be demoted, delayed in advancing, or denied a raise.
• A resignation is preferred over termination without cause.

If you were forced out of your job, you would likely consider it a wrongful termination, regardless of whether or not you quit or were fired. Constructive dismissal can also apply when an employee resigns without proper notice or breaks company policy. For example, an employer might ask an employee to sign a non-compete agreement but then fail to enforce it.

Constructive Discharge Gray Areas

Labor courts across California have interpreted forced resignation as only conditional, so an employee must exhibit that their employer knowingly caused or allowed a situation that forced them to resign. 

However, this interpretation of the law also may only be correct in the state of California. It may be the case that a situation in which an employer is aware of an intolerable working situation that is not also against the law does not necessarily require that they approve of such working situations. 

Nevertheless, what is clear is that constructive discharge can't be applied in situations where the employer was unaware of an illegal situation. Conditions that were not also illegal under another regulation may require some other kind of proof or may fall under the protections other regulations may offer.