No, Constructive Discharge Doesn't Equal A Lawsuit

Every once in awhile someone tells me they were constructively discharged, so they want to sue. They're surprised when I say, "For what?" That's because there’s no such cause of action or claim. Just because you were constructively discharged, that doesn't automatically equal a lawsuit any more than being fired equals a lawsuit.

Constructive discharge is where an employee quits work for good cause. If you are constructively discharged, the courts treat it as if you were fired. 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 even though you quit 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.

In general I recommend against quitting until you have another job lined up. It’s easier to get a job when you have a job. But if your working conditions are intolerable, for heaven’s sake look for another job.

If your 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.

My exception to the don't-quit-unless-you-have-another-job rule would be if the work situation is dangerous (rape, assault, unsafe conditions). If that's the case, then get the heck out of there. No lawsuit or potential suit is worth your safety.

Can You Rescind Your Resignation? Papa John's Former CEO Wants To Know

In light of the recent brouhaha over Papa John's founder/CEO's use of the n-word, subsequent resignation, then statement that he regretted resigning, I thought I'd address this issue I encounter frequently: can you rescind your resignation?

The answer, sadly, is probably not. However, it mostly depends on how much your employer wants you to stay.

In general, if you quit in a huff, you're gone. Most employers will grab onto anything they can to get rid of someone they think is disgruntled or, in the case of Mr. Schnatter, someone they think has become a liability. So think twice about even mentioning the thought of resignation.

If you quit, then say you changed your mind, your employer does not have to allow you to rescind your resignation. Here are some mistakes I've seen people make that employers jumped on to claim "you quit."

Let's talk severance: You're having problems at work. You've reported them. When HR asks what you want, you say you want severance. Guess what? You just quit. I find that any mention of severance originating from the employee is frequently deliberately misinterpreted as a resignation. Instead, wait for the employer to bring up severance as a possibility before you try to negotiate that exit package.

If this keeps up, I have to leave: Sure, things are terrible. But once you say that if certain practices continue, you'll have to go, your employer may jump on that as a resignation even if you had no intention of going. Nobody likes an ultimatum.

If I don't get a raise, I'll have to look elsewhere: If you're trying to negotiate a raise, better benefits, or just about anything else, don't threaten to start looking for a job. Too many employers will start looking for your replacement.

Walk out: If you leave work in the middle of a contentious discussion with the boss or a coworker, even if you think you were threatened in some way, many employers will claim you abandoned your position. Obviously, if you're in danger you need to get out of there. But if there is any alternative, such as calmly walking into an area with witnesses, do it. Even if you call management and say you're leaving or have left and they say something vague like, "Do what you need to do," many will claim you quit.

Pack your things: This is truly bogus, because there can be any number of reasons why an employee might pack up some or all of their personal belongings, but I've seen a number of employers claim that packing equals quitting. This is usually a desperate defense raised absent some real reason for a firing. Still, be careful. If you really have decided to redecorate or something benign, make sure your office doesn't look like you moved out (or tell someone in management in writing what you're doing and why).

But I never submitted my resignation letter!: I hear this all the time. You said you were quitting, then realized you didn't have a job lined up. You come back to work and find that your exit has been announced. You don't need a resignation letter to make a resignation official, any more than employers need a termination document to make a firing official (well, except in some states where they do need to put it in writing, but not here in Florida and not in most states).

No matter how upset you are, unless you have another job lined up, I recommend against quitting. I especially recommend against quitting without thinking it through. If you quit, you've done your employer a huge favor and maybe cost yourself some unemployment benefits. Proving constructive discharge is incredibly hard.

Think before you quit.

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.

Should I Quit My Job?

I get asked this question a whole lot. Here's my answer:

In this economy? What, are you nuts? That’s not really a legal question, but unless you have another job lined up, probably not.

I’m being harassed? Should I quit?

See answer above. But now we’re getting closer to a legal question.

In general, at least in most states, harassment isn’t illegal. Bullying isn’t illegal. If you’re being harassed due to race, age, sex, disability, color, national origin, religion, pregnancy, marital status, genetic information, objecting to an illegal practice of the employer, making a worker’s compensation claim, taking Family and Medical Leave, your testimony under subpoena, serving on jury duty, or some other legally-protected category, then, and only then, may the harassment be illegal.

For discrimination, you’re only protected if the employer has 15 or more employees. For Family and Medical Leave, they must have at least 50 employees. For other categories, check your state law to see whether you qualify. So you need to be sure the law protects you. Think you’re protected?

Still, you should not quit.

What you should do is report the harassment to human resources or whoever is named in the company’s harassment policy. I recommend you report it in writing so they can’t deny that you did it. You have to give them time to investigate and take action to stop it.

If they don’t stop it, or if they fire you for reporting it, then contact an employment attorney to discuss your remedies.

The truth is, only under the most extreme circumstances will the courts find that you were "constructively discharged," that is, that your quitting was because no reasonable employee would tolerate the circumstances. Should the law change? Probably. So talk to your legislators and congressional representatives.

In the meantime, the law hates quitters.