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You are Here: Home > Termination > Constructive Discharge

Constructive Discharge

Constructive Discharge Definition

Constructive discharge is an exception that renders the Doctrine of Employment at Will inapplicable. Also referred to as constructive termination, it's a legal concept developed by the National Labor Relations Board (NLRB), a government agency that protects workers' union rights.

The NLRB developed the concept to right the wrong when employers coerced employees to resign, because the employees were legitimately involved in union activities.

Since then, constructive discharge law has been evolving in the courts to cover other situations. The legal concept has become a doctrine, for which the particulars are still evolving.

At this writing, constructive discharge generally means an employee resignation caused solely by an employer implementing or allowing an extraordinary change that made working conditions so intolerable, it would have compelled any reasonable employee to resign.

Constructive discharge is effectively a form of wrongful termination, even though the employee quit. Subsequently, constructive discharge is also referred to as constructive wrongful discharge or constructive wrongful termination.

In other words, if an employer implements or allows such an intolerable change that it compels a reasonable employee to resign, then, under the constructive discharge doctrine, it might be akin to the employer illegally firing the employee.

Constructive Discharge Proof

The following is a summation of the general proof required to establish a legal case for a constructive discharge claim, according to various sources at this writing.

  • The change must have been recent and so intolerable, that it would have compelled any reasonable employee to quit soon after it occurred.
  • The employer must have deliberately implemented or permitted the change, without having justifiable business reasons and despite that it was apparent it would compel any reasonable employee to resign. Even if the employer's intention was not specifically to force an employee to resign, the employee's resignation still might constitute constructive discharge under the circumstances.
  • An employee's resignation must have occurred close enough in time after the intolerable change that it established a clear "cause and effect" relationship, directly resulting in constructive discharge.

Punitive transfer to a dangerous job, demotion to a humiliating position, hostility, harassment and coercion are each an example of an intolerable working-condition change that might establish a legal case for a constructive discharge claim, particularly if the employer willfully made or allowed the change as a form of illegal discrimination or retaliation.

If an employee quits because of something that's always annoyed him or her, then it's not likely to constitute constructive discharge. Quitting because of a petty change or one that most reasonable employees would tolerate isn't likely to constitute it either. The same goes if an employer made a change for a justifiable business reason and an employee quit simply because he or she didn't like it.

Constructive Discharge Relief

If you think that your resignation constituted constructive discharge, then consider consulting a lawyer. If your lawyer also thinks that your resignation constituted constructive discharge, then he or she will help you to determine the best legal recourse. (Legal recourse might include filing a charge with a government agency, a private lawsuit in court, or both.) Your lawyer will also help you to collect evidence to prove your case. If you win, you might be entitled to collect back pay and benefits, and money for damages and legal expenses.

Remember, you must establish a timely cause and effect relationship. Additionally, there's a statute of limitations for taking legal action. So, don't delay for long in seeking relief after you quit. In fact, it might be better idea to consult a lawyer before you quit, to determine if you'd have a legitimate case for constructive discharge in the first place.

If you reasonably believe that your resignation constituted constructive discharge, then explain so when applying for state unemployment benefits. Otherwise, your claim might be denied. If that happens anyway, then you have the right to file an appeal; but, if you're working with a union representative or lawyer, it's a good idea to consult him or her before taking any action regarding unemployment benefits.

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