Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, September 9, 2011

Can I Sue For Constructive Discharge?

Sometimes, people come to me and say they want to sue for constructive discharge. There’s no such cause of action or claim. Constructive discharge is where an employee quits work for good cause. This means some claims that you were illegally fired (worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few) are still allowed if you’re constructively discharged. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.

Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. For instance, I’ve seen sexual harassment cases as extreme as rape that weren’t found to have been so intolerable that the circumstances constituted constructive discharge by the employer.

For unemployment purposes, if the company cuts your pay, changes your job duties in a major way, changes your shift, transfers you to a new location, that may be enough to be deemed cause attributable to the employer. But you’d better be sure before you quit if you want to make sure you’ll qualify for unemployment. Sometimes the unemployment office will have a website or have someone you can call to get information. Otherwise, you’ll probably want to be sure of your rights before you quit.

Donna’s tips:

a. If your working conditions are intolerable, for heaven’s sake look for another job. Try not to quit until you have another job lined up. It’s easier to get a job when you have a job.

b. If working conditions are intolerable due to discrimination, sexual harassment, failure to pay wages, or something protected by law, complain to HR in writing before you quit and give the company a chance to correct the situation.

c. If the work situation is dangerous (rape, assault, unsafe conditions), then get the heck out of there. No lawsuit or potential suit is worth your safety.

1 comment:

  1. I have a friend who is in a complicated situation with her employer. The employer gave her a promotion with verbal agreement that she would receive the same hourly wage but increased commission as compensation for the new role with added responsibilities. The employer did not follow through. When she explains the situation it seems as if the employer is trying to force her out of the position and department. Repeatedly they have failed to compensate for her work. Is this a situation that can be labeled as constructive discharge?


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.