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

Question: Four months ago, I involuntarily resigned from my former job because I was about to be terminated after a dishonest Performance Review. I felt that my manager and HR both schemed, by all of a sudden lowering my performance review, in order to lower the number of employees, without paying any severance. I even lost my quarterly commissions. It was literally making me sick, but I decided that resigning was safer and more principled thing to do. Since then, I have gotten a new job, but it pays $20,000 a year less.

What happened to me still bothers me. It wasn’t right, I saw no other way out, and I have the feeling, deep inside, that they “got away with it.” Is there anything I can do to get at least some kind of satisfaction?

Terri
Lansing, Michigan

Answer: Dear Terri: This is not the first time I’ve received almost this exact question. No doubt a lot of people have felt the way you feel. There are several possible paths to “satisfaction,” depending on what “satisfaction” means to you. Here are my thoughts:
Read the rest of this blog post »

“One of the secrets of life
is to make stepping stones out of stumbling blocks.”

– Jack Penn

ACTUAL CASE HISTORIES: A very commonly asked question is this: “I have followed your suggestions, but it has not yet worked . . . What do I do now?”

The writer usually explains that her email memo to management “pushing back” against a dishonest performance improvement plan (“PIP”) did not get her what she wanted. Or, his request for better terms of severance achieved only minimal results. Or, perhaps, her attempt to get a waiver for a non-compete agreement received no response. Or maybe, even, his complaint of discrimination was essentially ignored.

There are five simple “next steps” available in each of those problem situations, and others, too, that remain unsolved despite your best efforts. While choosing which “next step” among them is the best one for you, surely one or more of them is the wisest one for you. And, in fact, you can try all five if you wish.

What needs to be kept in mind is that there is no problem without a solution. And many different approaches can be tried to solve a problem. It might even be your second, third or fourth attempt to solve a problem that turns out to be the most effective.

LESSON TO LEARN: Maybe you did not immediately get the results you wanted to get when asking for removal of a negative reference from your HR file. Or maybe you were turned down in your first request for an investigation of your complaint of harassment. Or, maybe, too, your repeated complaints of unsafe working conditions were simply ignored. In each of these instances – and many others, too – you would likely be frustrated, demoralized, perhaps even angry.

As the simple saying goes, “Don’t get angry . . . get even.” Or, as we are reminded, “If at first you don’t succeed, try, try again.” Or, perhaps, bear in mind the adage, “There are more ways than one to skin a cat.” (My apologies to all of you cat lovers out there.) Don’t give up. Don’t get frustrated. Just keep going.

WHAT YOU CAN DO: Here are your five alternative next paths available to you. Coincidentally, each path forward ends with the letters “ate,” as do the words “navigate” and “negotiate.” Might it be pure coincidence?:
Read the rest of this blog post »

Question: Hi. I’m trying to find out how to respond to management and colleagues who ask where I’ll be working once I tender my resignation. Any ideas?

Delia
Pawling, New York

Answer: Dear Delia, Your question is a common one, and one you are wise to ask, as well:
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New!!

SkloverWorkingWisdom™ – Self-Help Action Plan 1

“Totally Frazzled from Work?
Here’s What You Can Do”

A Plan for Addressing Extreme Exhaustion
and Possible Need for Time Off

© 2015 Alan L. Sklover