Constructive discharge

By James Parker
/
May 22, 2022

What Is Constructive discharge?

One of the many conundrums that workers can find themselves in is employment in a job that has harsh conditions but does not fire them. If a worker quits due to the perceived unworkable conditions, the alleged mistreatment ends but they fail to qualify for many of the safeguards afforded to those who are fired. In certain circumstances, this issue can be mitigated by the concept of a constructive discharge.

A constructive discharge, also called a constructive termination occurs when a worker quits a job due to “intolerable conditions.” Under these circumstances, a resignation will be treated as a more traditional firing. This allows the worker to qualify for unemployment benefits and possibly even allows the worker to sue their former employer for wrongful termination. 

The idea of the constructive discharge as a legal philosophy is credited to the National Labor Relations Board in the 1930s. At the time, the constructive discharge idea was put forth as an attempt to stop employers who would take extreme measures to prevent employees from unionizing and force unionized workers to resign by subjecting them to inhumane working conditions.

Key Takeaways

  • Constructive discharge is a legal concept that states that if a worker is forced to resign due to intolerable conditions, that resignation should be treated the same as if the employee had been fired.
  • Constructive discharge cases allow the former worker to qualify for benefits, including unemployment and were initially implemented to protect unionizing workers.
  • For Fora's resignation to be considered a constructive discharge, the worker must prove that the conditions were objectively intolerable and a reasonable person would also have resigned.
  • If you have been forced out of your job by an employer and subsequently been denied your unemployment benefits, an experienced Employment Law attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Constructive discharge and Employment Law

The standard for determining a constructive discharge is simple on paper. If an employee resigns due to working conditions that a reasonable person would find intolerable, it is probably a constructive discharge. The difficulty can be in determining where a reasonable person would draw the line and resign.

Some employers have historically created intolerable working conditions with the specific goal of forcing employees to resign rather than firing them. This can serve several interests of the employer. The employer does not have to pay out benefits, unemployment, or honor any termination benefits for the employee. Additionally, this type of forced resignation can be used as a threat to employees who make an effort to form or join unions. 

Employees forced to resign in this way can file a lawsuit against their employer under the National Labor Relations Act. The U.S. Supreme Court has held that an employer violates National Labor Relations Act when it "purposely creates working conditions so intolerable that the employee has no option but to resign."

In addition to allowing prospective union members to sue, the court system has also allowed the National Labor Relations Act protections to be extended to non-union employees. Although the specific conditions and rules may vary in these cases, the core standard remains the same: when an employee resigns or quits their job because the working conditions are intolerable, the resignation is legally regarded as a termination.

With this in mind, it is important to know what the courts will recognize as “intolerable conditions.” The bar for intolerable conditions is traditionally very high. One of the more recognizable intolerable conditions is discrimination. If a worker has been harassed and discriminated against based on their age, disability status, gender, nationality race, religion, or sex, and it resulted in the worker resigning from their position, they may be able to file a wrongful termination lawsuit under constructive discharge laws.

Even though discrimination of any kind can be a basis for filing a constructive discharge case, the courts do not accept all discrimination as “intolerable conditions.” Simply being treated poorly by a supervisor or being paid unequally, even if they are discriminatory, are not sufficient reasons for a constructive discharge case. The worker must demonstrate that conditions imposed on them were so objectively intolerable that the average person in the worker’s situation would also have been compelled to resign. This standard typically required some kind of egregious conduct from the employer such as physical harassment, demotion in a humiliating manner, or some other unambiguous harmful behavior. For some states, this behavior does not have to be discriminatory, but can simply fall under the category of bullying.

The courts are also unlikely to award damages to a worker who they deem has not done their duty. If an employer has not taken “tangible action” against a worker such as demoting them, cutting their pay, or reducing their benefits, then the worker must show that they reported the intolerable conditions to the appropriate management authorities and allowed the employer to remedy the situation before the worker resigned. 

Bottom Line

If you were forced to quit your job after suffering intolerable working conditions by your employer, you may be able to recover the unemployment benefits and termination package you were forced to leave behind. To do so you will need to file a lawsuit and partner with an Employment Law attorney.

An Experienced Employment Law attorney can use their legal expertise to subpoena records, depose witnesses, and gather evidence of the inhumane treatment at your former place of employment to zealously advocate on your behalf. With their expert witnesses and practiced trial tactics, an Employment Law attorney will be able to pursue the best possible outcome for your case.

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