What is "constructive discharge" and how can employers protect themselves against these claims?

January 3, 2008

Sometimes employees quit, but not voluntarily. Constructive discharge occurs when employees are forced or coerced into quitting, rather than voluntarily choosing to terminate the employment relationship. When alleging constructive discharge, employees may claim that the resignation was not voluntary, but rather was forced by the employer's actions or the employer's failure to correct an intolerable work environment. For example, an employee who is victimized by a supervisor's constant sexual harassment may feel compelled to quit. The employee's leaving under such oppressive circumstances will be a constructive discharge. In this situation, the employee may sue for wrongful discharge (and harassment), even though the employee terminated the employment relationship.

Generally, a discharge is considered constructive if the following apply:

• The employer created or condoned working conditions for the employee that a reasonable person in the employee's position would find intolerable.
• Any reasonable employee would quit rather than endure the workplace situation.

Other than harassment, employees may be constructively (unfairly) discharged due to any of the following:

• Discrimination
• Dangerous duties
• Hazardous situations
• Demeaning or malicious assignments
• Employer's repeated and extensive failure to provide employee with work

Prevention
An employer's sincere, unhindered policy toward employee concerns and complaints may be an employer's best defense against a claim of constructive discharge. Employers should document and appropriately address all employee concerns. When an employee quits after complaining of intolerable work conditions, the employer should immediately perform an investigation to verify the employee's claim and, if appropriate, remedy the situation. If the employer wishes to retain the employee, the employer should offer the employee unconditional, immediate reinstatement. The employer should assure the employee that the intolerable conditions have been addressed and corrected. An employer's immediate and fair approach to employee complaints and concerns can reduce potential liability and severely undercut a claim of constructive discharge.

This information is adapted from Ceridian's HR Compliance Reference System. Contact your Ceridian representative for more information about Ceridian's compliance solutions.