Constructive discharge is when an employee resigns from their job due to a toxic or hostile workplace, but this environment has been intentionally created by their employer to force them to leave.
If you find yourself dealing with this situation, you might feel uncertain of how to navigate it and empower yourself. The important thing to remember is that you have laws on your side and rights in the situation.
Legally, a constructive discharge that results in resignation is treated the same as being fired from a job, so you can gain compensation.
Read the rest of this article to learn about the different types of constructive discharge, how to identify it in the workplace, how to deal with it, and how hiring a lawyer can help you.
What are Types of Constructive Discharge?
Constructive discharge can show up in different ways. Here are some of the most common examples of it.
- Withholding pay. An employer might refuse to pay an employee, either partially or completely, which can violate labor laws. An employee might end their job so that they can find financial security elsewhere.
- Discrimination. This is another example of constructive discharge that violates the law. It can involve religious, gender, racial, or other discrimination.
- Retaliation. The employer demotes or fires an employee who reported illegal or inappropriate activities in the workplace.
- Removing employee benefits. This involves taking away employee benefits, such as company cars.
- Reducing or increasing work hours. An employer might suddenly adjust an employee’s working hours without giving them a chance to get used to it.
- Unsafe working conditions. While illegal, employers might force an employee to work in unsafe or unhygienic conditions that put them in danger.
How is Constructive Discharge Proven?
It can be challenging to prove constructive discharge, so it requires the following to be present.
- Intolerable working conditions. These must be so bad that a reasonable person in the same position would have deemed them intolerable.
- The conditions must be proven to be the result of discrimination directed at the employee.
- When the employee resigned, this involuntary action must clearly show that it’s a result of the intolerable situation.
The above points serve to distinguish constructive discharge from other practices that, while they might seem unfair, aren’t the same.
For example, scheduling changes in the workplace that are applied to all employees isn’t considered the same as an employer making one employee have to make big changes to their working hours.
Similarly, an employer is allowed to demote an employee or reduce their pay if they are failing to meet their standards. This varies from constructive discharge, where an employer is doing this unjustly.
How Should Employees Deal with Constructive Discharge?
If you find yourself working in a toxic environment and you think that your employer could be showing signs of constructive discharge, here is what to do.
Keep a Record of Everything
Document everything that has been happening to you in the workplace. This can include jotting notes about your employer’s treatment of you or changes to your work schedule.
If possible, include witness accounts that show the treatment you’re receiving isn’t the same as how your coworkers are being treated.
Make Use of Internal Grievance Procedures
It’s important to try to seek a resolution to the problem. Report the issue internally in your company to show that you’ve tried to fix the situation or better understand it.
This is especially important to do because courts will want to prove that the employee tried to find reasonable alternatives to resigning from their job, such as reporting grievances.
Give Your Employer a Chance to Respond
As long as it is safe to do so, you should wait for your employer to consider your grievance and respond to it. This might be enough to open communication between you so you can resolve the issue and clarify the situation.
Decide on Leaving or Staying
How you deal with a constructive discharge situation largely depends on whether you’d prefer to resign from the job or maintain your role in the company.
If you want to keep your job, reaching out to your employer and trying to find a solution will help you to try to mend the working relationship. On the other hand, if you wish to resign, you should try to negotiate the best exit possible for yourself, such as by receiving a great reference to help you find a better job.
Consult with a Lawyer
If you’ve exhausted all internal processes to deal with the constructive discharge, you should speak to a lawyer.
Hiring a lawyer doesn’t have to be time-consuming or stressful. On ContractsCounsel, an online legal network connecting clients with vetted lawyers, you can find an employment lawyer who is reliable, skilled, and interested in your case. They will help you to understand your rights and options during a constructive discharge situation.
Here’s how they can help you:
- They’ll investigate your claims to see if they’re valid. For example, if the case is indeed constructive discharge or if it’s signs of a toxic workplace.
- They’ll negotiate with your employer.
- They’ll assist you in reporting the incidents.
- They’ll pursue legal action if required.
- They’ll help you take the right steps so that you don’t make a mistake which could harm your career prospects.
- They’ll prioritize your rights.
- They’ll use their legal knowledge to identify illegal employer behavior.
What are Legal Remedies for Constructive Discharge?
Legal solutions usually deal with finding the best resolution to the problem. This includes negotiations.
These are a common element of constructive discharge cases, in order to help you gain compensation. Your lawyer can help you with this process, which includes engaging in discussions, making a written offer, making counter-offers, and finalizing the agreement in writing.
If you quit, since you’re dealing with wrongful termination, your resignation will likely be viewed as being fired. This could result in you receiving damages, such as back pay to cover your lost income and benefits.
It’s common for processes such as negotiation, mediation, and arbitration to be considered before legal proceedings. If your situation is serious, such as that your lawyer can prove discrimination or retaliation, you could sue your employer.
Your lawyer will help you figure out your options and choose the best way forward that prioritizes your interests and wellbeing.
Do you need a lawyer for constructive discharge?
You should connect with one on ContractsCounsel. All lawyers on the platform are vetted, professional, and have years of experience in assisting clients with unfair dismissals.
