Constructive Discharge – Key Words & Phrases

Published on August 15th, 2017 by Alan L. Sklover

Key Words

What is the meaning of:

Constructive Discharge?

Many people use the phrase “constructive discharge” (or “constructive termination”) to mean, generally, “This place has become intolerable, if not impossible, to work in.”

In doing so, most are part right and part wrong. Because this is an increasingly common situation, let’s here and now set the record straight.

Speaking very generally, and not in the legal sense, “constructive discharge” means that the conditions of employment have become so intolerable that no reasonable employee could possibly remain on the job.

In this very general – but not legal – meaning while the employee is free to quit his or her job, if he or she has done so, he or she has (i) no real legal claims, (ii) no real claim to unemployment, and (iii) no other real claims, remedies or rights.

Legally speaking, “constructive discharge” means that three things have happened: (a) conditions have become so intolerable that no reasonable person could remain on the job; AND (b) the employee has given the employer notice of the intolerable condition(s), without success, AND (c) the intolerable condition violates some law, company (or public) policy.

Here are two illustrative examples:

    1. First example: Your manager is disorganized, has a terrible memory, rarely bathes, and asks employees to get her shoes shined and fetch her lunch. She also requires that team members come in early and stay late, almost every day. This is surely humiliating, insulting and obnoxious, so much so that employees leave after just a few months after trying to put up with it. But no employee is promised the ideal boss, or even a good or nice one. This is not, “legally-speaking,” constructive discharge.

    2. Second example: (a) There are odors and gases in your workplace that often make your eyes burn, and make everyone nauseous. (b) Your manager repeatedly speaks to people with nasty references to their religion, gender, skin color and/or private parts. And (c) he retaliates against anyone who objects or reports him to HR. In addition, and (d) you have reported his ways to HR or senior management, without success, AND (e) each of the conditions violates company policy or the law, or both.

If these practices have continued after you have reported them, and make staying intolerable, you have a pretty solid “legal case” of constructive discharge, and thus pretty solid legal claim, right to unemployment benefits, and even possibly severance.

Simply put, to have a true, “legally-speaking” constructive discharge, you need (a) AND (b), AND (c), each as noted above.

Those who face “legally speaking” constructive discharge at work should very seriously consider NOT resigning, but RATHER “RESIGNING INVOLUNTARILY.” to read more about this great concept, something we are proud to have invented, [just click here.]

Get the picture? Keep it in mind. You read about it here. Knowledge is power. Forewarned is forearmed. That’s what SkloverWorkingWisdom™ is all about.

For a complete list of our Model Letters, Model Memos, Checklists and Form Agreements, just [click here.]

For a telephone consultation on strategies to deal with “constructive discharge” or other workplace issues, just [click here.]

© 2017 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

Sklover’s Thought for the Work Week

Published on August 14th, 2017 by Alan L. Sklover

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“Any fool can criticize, complain and condemn
– and most fools do.”

– Dale Carnegie

At work, as in life, you will go so, so much further in your chosen direction if you are a positive person, that is, by sincerely complimenting, by openly appreciating, and by being honestly supporting. Work life can be grinding. You will stand out like a diamond if you are known to be one who is generous of spirit.

This quote was sent to us by Mason L. of Christchurch, New Zealand, our first submission from that wonderful country. If you would like to submit a proverb, quote or thought, please submit it to us at vanessa@executivelaw.com.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.] Evenings and weekends can usually be accommodated.

© 2017 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

We’re pleased to offer another new “Model Letter”:

Published on August 8th, 2017 by Alan L. Sklover

“Post-Investigation Push Back Memo – For Use When Your Complaint is Found ‘Without Basis’”

If you submit a complaint to your employer of Discrimination, Harassment, Retaliation, Fraudulent Performance Review or False Performance Improvement Plan, or other improper misconduct, chances are that (a) the ‘Investigator” will dismiss it by concluding it has “No Basis,” (b) you will feel frustrated, demoralized and bitter.

This Model Memo shows you how to “Push Back” in the most effective way. Although it is written regarding a complaint of retaliation, it is easily modified to address dismissal of a complaint of discrimination, harassment, false Performance Review, or other misconduct.

As Ben Franklin said, “Fail to Prepare, and You Prepare to Fail.”

Like all of our Model Memos and Letters, it shows you “What to Say, and How to Say It.”™ New!!

*To obtain a copy of this Model Letter, just [click here.]

**To see a list of all of our Model Letters, Memos, Checklists and Agreements – that show you “What to Say and How to Say It” in hundreds of different workplace situations – just [click here].

***To arrange a telephone consultation, just [click here].

And don’t forget: Members get a 10% discount on all of our materials. To become a Member, just [click here].

© 2017 Alan L. Sklover All Rights Reserved.

Sklover’s Thought for the Work Week

Published on August 7th, 2017 by Alan L. Sklover

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“Never criticize a man until you have walked a mile in his shoes.
This way, when he finds out what you said about him,
he is a mile away . . . and you have his shoes.”

– Unknown

Just thought you might enjoy this. Making someone else smile or laugh is a supremely good deed.

If you would like to submit a proverb, quote or thought, please submit it to us at vanessa@executivelaw.com.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.] Evenings and weekends can usually be accommodated.

© 2017 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

Workplace Negotiating Insight No. 10: No Road Signs

Published on August 1st, 2017 by Alan L. Sklover

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Agreements without Page Numbers, Section Headings, or Paragraph Letters are Trying to Hide Things from You.

Observe and Learn:

I consider myself a “contracts lawyer” because I review, analyze and negotiate so many employment agreements, severance agreements, non-competition agreements, retention agreements, settlement agreements, partnership agreements, and the like, day in and day out. And I have been doing this for 35 years.

Time and again, I feel like I can “see through” the spirit of an agreement or contract that I have been given to review, and time and again, it turns out, 
I am correct in one important regard.

A long time ago I noticed something puzzling: whenever I reviewed an agreement that contained no page numbers, no section titles, and no paragraph letters (or very few), almost always I also noticed something else: each of these agreements without the usual “road signs” contained one or both of the following:

    (a) a very dangerous or negative provision “hidden in the weeds,” that is, located in a place no one would look for it – as an example, a non-competition provision located in the middle of a paragraph about the address to send notices – or

    (b) something very important to my client – like the amount of bonus to be paid him or her – for some unknown reason, completely missing.

“Gosh,” I say to myself, “why is “this” located “there?” Or, “How could they possibly have forgotten that?” “Who could make such an error?” And, finally, “Could it possibly have been a mere error or coincidence?”

This reminds me of the time when, years ago, my wife rearranged our clothes closets. My socks ended up in the night stand, along with my ties. My shoes were, for some reason, hung up where my suits used to be, and my shirts were spread out in two closets and one drawer. To this day, many years later, I still have never found my favorite pair of blue socks. Somehow, though, seeming miraculously, my wife ended up with a lot more closet space than she had before!

The lesson is this: be very, very suspicious of agreements that do not have page numbers, section headings, or paragraph letters (or very few of them), what I call the “usual contract road signs.” Whether by error or intention – and I now presume intention – drafting an agreement this way is not conducive to people understanding the meaning and effect of the agreement, unless they have read it very carefully, many times, with a “suspicious eye.”

Read these contracts extra carefully, and if it is a contract important to you – which they all usually are – consider a legal consultation, as well.

Is this just my imagination? I don’t think so. Derived from my intuition? Maybe. Based on my experience? Definitely. Becoming more common? Absolutely.

Observe and Learn.
Then Negotiate.

© 2017, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.]

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 30 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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