Published on August 15th, 2017 by Alan L. Sklover
What is the meaning of:
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.]
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