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If unlawful conditions at work force you to quit, you may still be able to claim termination

When an employee quits a job because they feel they have no other choice, that resignation can be viewed as a termination — an act placed in motion by the employer, not the employee — despite the final act of separation executed by the employee.

What is constructive discharge?This is known as constructive discharge. Victims of constructive discharge in California have a host of rights and remedies available to them that people who otherwise quit on their own volition would not have, including unemployment and monetary damages.

What is constructive discharge?

Simply put, constructive discharge is when an employer creates or allows to continue working conditions so intolerable that an employee feels they are left with no choice but to quit. The law treats constructive discharge as a materially adverse employment action (basically, treated as a wrongful termination).

Legally, in order to prove constructive discharge, the following requirements must be met:

  • Under the same conditions, any “reasonable” employee would quit,
  • The employer either intentionally created or knowingly allowed the intolerable conditions, and
  • The resignation was coerced, as opposed to simply being one rational option for the employee

Examples of constructive discharge

Examples of constructive dischargeSo what types of conditions could force an employee to feel compelled to quit in a manner that constitutes constructive discharge?

  • Explicit measures, such as an employer saying, “I am going to make your life at work so miserable that you will quit.”

  • Failure to reasonably respond to or address a safety complaint, including failing to implement safety precautions as workers return from COVID-19 stay-at-home orders.

  • Retaliation by the employer against an employee who partakes in a legally protected activity, such as complaining about sexual harassment by coworkers.

    • This would include measures as extreme as termination, a cut in pay or a negative review, but could also include actions as subtle as an adverse change in schedule, moving an employee’s work station or denying vacation requests.

  • Bullying at the hands of coworkers. For instance, coworkers find out an employee takes antidepressant medication, and they then make of that employee, calling them crazy.

  • Discrimination based on a protected class according to federal and/or California law, such as age, race, gender, disability, religion, marital status or gender identity. An example of this would be a company instituting a pay cut to save money, but only cutting the pay of employees aged 50 and older.

Constructive discharge and unemployment

The California Employment Development Department (EDD) typically does not allow a person to collect unemployment if they willfully left their job (quit on their own volition). But, because a constructive discharge is legally viewed as a firing rather than a resignation, a victim of constructive discharge can collect unemployment.

In order to prove constructive discharge to the EDD, the person applying for unemployment may be asked for proof of the voluntary discharge (this could include workplace communications, statistics and interviews by the EDD with former coworkers). An applicant could also be asked to provide additional documentation or attend a hearing with the EDD in an effort to prove constructive discharge.

Remedies for victims of constructive discharge

Remedies for victims of constructive dischargeA person seeking remedy for constructive discharge typically has two courses available to them:

  • Filing a complaint through a regulatory agency, such as the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH)
  • Filing suit in civil court

Potential remedies for victims of constructive discharge include:

  • Reinstatement to their old position
  • Reimbursement of lost wages
  • Discipline/termination of employee(s) who created the intolerable conditions
  • Reimbursement of attorney’s fees
  • Monetary damages

Statutes of limitations for filing constructive discharge complaints and/or lawsuits vary, but these complaints can be filed in court after a person has left their job.

Anyone who believes their employment ended because of constructive discharge should consult with an employment attorney to determine if they have legal standing and to assess any claims they may have.

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