Constructive Discharge (Constructive Dismissal)
The term constructive discharge is used to describe working conditions that are so unbearable that an employee decides to quit their job and leave the company. Constructive discharge can occur when an employee is exposed to sexual and other forms of harassment as well as threats of violence.
Also known as constructive dismissal, constructive discharge occurs when the workplace becomes so intolerable that an employee feels compelled to quit. Typically, employees that voluntarily quit their job are not entitled to unemployment benefits; however, if constructive discharge can be proved, an individual may be eligible to receive unemployment compensation.
A hostile work environment that may lead up to constructive discharge includes discrimination (age, sex, race), harassment (including sexual assault), immoral treatment, threats of violence, and a downgrade (lowering) of the employee’s pay. These conditions can make the workplace so intolerable the employee effectively is forced to quit their job, even though they never received a notice of termination.
An employee may be able to file a wrongful termination lawsuit against their employer, or collect unemployment benefits, if they can prove constructive discharge. Generally, the following guidance applies:
- Notification: a written letter should be presented to a representative of the employer, outlining the conditions that are so difficult to work under that the employee feels compelled to resign.
- Employer Response: the employer is normally given 15 calendar days to respond (in writing) to the working conditions outlined in the employee’s notification letter. Employees may be entitled to paid or unpaid leave while waiting for their employer to respond. Once the letter is received, the employee is required to read and consider the written response.
If the employee does not feel their employer’s response addresses their concern, or a response is not received in 15 calendar days, an individual that feels compelled to quit their job may be able to support a claim of constructive discharge.
Note: Anyone that believes they’ve been wrongfully discharged, or constructively discharged, should seek the help of the Department of Labor (federal and state), which can explain the laws that apply in their state and how to go about filing a claim.