Constructive Discharge

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Employees work best in a positive work environment. For employers, it is important to recognize that fostering a supportive atmosphere and safe working conditions can boost the morale of employees and increase productivity. Unfortunately, this is not always the case. There are cases where, even if an employee needs and wants to work, they are left with no choice but to leave. 

What is constructive discharge? 

Constructive discharge happens when an employee leaves a job because the employer has made the working conditions so unbearable. In other words, it is when the employee is forced to resign because they can no longer tolerate the working conditions no matter how hard they try. In the United States, constructive discharge is another term for involuntary resignation which is a form of wrongful termination. 

In a constructive discharge, the separation is involuntary even if the employee was the one who resigned. On the surface, it may seem as if it is voluntary. However, the employee had no choice but to resign because of the unbearable working conditions. 

What are other names for constructive discharge? 

Constructive discharge is also known as constructive dismissal or constructive termination. 

What constitutes “unbearable working conditions” in constructive discharge?

Multiple factors can contribute to unbearable working conditions. It can include a hostile work environment, constant harassment or discrimination (based on age, national origin, race, religion, gender, sex, disability, or pregnancy), or unsafe working conditions. 

Additionally, constructive discharge can also happen if there is retaliation against whistleblowers or if an employer does not take action to provide reasonable accommodation to a disabled employee which forces them to resign. 

What are the legal requirements for constructive discharge? 

In the United States, there is no single federal law that prohibits constructive discharge. However, since the legal definition of constructive discharge involves a violation of labor laws, it can be grounds for legal action. 

In a constructive discharge, the burden of proof is on the employee. Generally, the employee must prove that there was mistreatment at the workplace. Proof can come in the form of how the employee documented the mistreatment, that they have reached out and made a complaint to human resources, supervisor, or manager, but it still went on and persisted, leaving the employee no choice but to resign. 

Furthermore, the claim must pass this three-part test set by the Equal Employment Opportunity Commission (EEOC):

  1. Working conditions must be such that a reasonable person in the complainant's position would have found them intolerable.
  2. The intolerable working conditions must be the result of conduct that constituted discrimination against the complainant.
  3. The complainant's involuntary resignation must result from the intolerable working conditions.

Also, the intolerable working conditions must be a violation of one or more labor laws like the Family Medical Leave Act, the Americans with Disabilities Act, or any other state or federal labor law. 

If an employee can prove constructive discharge, they may qualify and claim unemployment benefits and also retain the right to sue their employer. 

When do you file a constructive discharge complaint? 

If you want to pursue a constructive discharge complaint, it must be filed promptly because there is a statute of limitations on filing a complaint. For the private sector, it is 180 days (300 days in U.S. states that have a state agency) from the date that they gave their resignation notice to their employer. For federal employees, they have 45 days to contact an EEOC counselor. 

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