Constructive Discharge

Constructive Discharge Definition

Constructive discharge is an exception that renders the Employment at Will Doctrine inapplicable. 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 termination.

In other words, under the constructive discharge doctrine, an employer implementing or allowing such an intolerable change that it compels a reasonable employee to resign, is akin to the employer illegally firing the employee.

Proving Constructive Discharge

The following is a summation of the general proof required to establish a case for constructive discharge, according to legal 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, an 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 case for constructive discharge, particularly if the employer made or allowed the change as a form of 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 petty changes or those that most reasonable employees would tolerate, isn't likely to constitute constructive discharge either. The same goes if an employer made a legit change for justifiable business reasons and an employee quit simply because he or she didn't like it.

If you think that your resignation constituted constructive discharge, consider consulting a lawyer. If your lawyer also thinks that your resignation constituted constructive discharge, he or she will help you determine the best legal recourse. (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 likely to be 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 legit case for constructive discharge in the first place.

If you reasonably believe that your resignation constituted constructive discharge, explain so when applying for state unemployment benefits. Otherwise, your claim might be denied or your benefits might be delayed. If one or the other happens anyway, consider filing an appeal. But, if you're working with a lawyer, consult him or her before taking any action regarding unemployment benefits.