What Is Constructive Discharge?
Imagine the following situation: you’ve worked at your company for more than 25 years and have always done an outstanding job. Recently, you’ve heard rumblings that the company wants to hire younger people who they won’t have to pay as much. Over the past few months, your boss has changed your hours so that you are constantly bouncing back between day and night shift. He refuses to put you back on your regular schedule—and so finally, unable to take it anymore, you quit. The company then hires a recent 22-year old graduate to replace you.
In this scenario, you may think that you don’t have any recourse. After all, you weren’t fired—you quit. But this may be a form of constructive discharge, which occurs when an employer creates intolerable working conditions so that an employee believes he or she or they have no choice but to resign.
Constructive discharge happens often in workplaces across California. If you were constructively discharged from your job, you may be able to file a claim for wrongful termination. An experienced wrongful termination attorney can advocate for your rights—and help you seek justice.
Understanding Constructive Discharge
You may have an instinctive understanding of constructive discharge. Perhaps you have even been in a situation where your workplace environment became so toxic that you felt that you had to quit. For purposes of legal claims, however, there is a specific definition of constructive discharge.
Under California law, there are three elements of constructive discharge:
An employer intentionally creates or knowingly permits
Working conditions that are so intolerable or aggravated,
That a reasonable employer would realize that a reasonable person in the employee’s position would have no choice but to resign.
In other words, to be constructively discharged, your working conditions must be so bad that they are “intolerable” — and you have no choice but to quit. Importantly, your boss has to either create these conditions or allow them to happen. If there is something happening that is completely outside of your employer’s control (like a work slow-down due to a shortage of materials), then it may not qualify as constructive discharge.
This can play out in any number of ways. For example, John is an employee at a machine shop. After witnessing his male coworkers sexually harass a female coworker, he reported them to management. These coworkers were disciplined but were not fired and now hold a grudge against John. They are making it almost impossible for him to work by insulting him, hiding his tools and safety gear, and refusing to talk to him directly. John decides to quit as a result of their ongoing harassment.
This may look like a case of constructive discharge. But if John’s employer didn’t know that his coworkers were behaving this way, then it may not qualify as constructive discharge under California law. However, if his employer or supervisor knew of this retaliatory conduct and failed to take steps to stop it (i.e., they knowingly permitted the behavior), then it may be constructive discharge. In this situation, John may have a claim for wrongful constructive discharge (and illegal workplace retaliation) because he faced retaliation after reporting sexual harassment.
When Can You Bring A Lawsuit For Wrongful Constructive Discharge?
As noted in the example above, quitting your job because of intolerable work conditions isn’t always constructive discharge. In the same way, even if you were constructively discharged, it doesn’t always mean you can file a legal claim. To be able to sue your employer, you must also show that your constructive discharge was wrongful.
This concept is relatively straightforward: if you could have sued your employer for wrongful termination had they fired you, then you can file a claim for wrongful constructive discharge. To win this type of case, you will need to demonstrative that:
You were constructively discharged; and
If your employer had fired you outright, you would have had a valid wrongful termination case against your employer.
Generally speaking, you may file a claim for wrongful termination if you were fired for an illegal reason or a reason that violates California public policy, such as reporting workplace harassment or discrimination. Importantly, most non-union employees in California are “at-will.” This means that they can be fired at any time, without cause as long as it’s not for an illegal reason — like discrimination or retaliation.
The following scenario describes a potential case of wrongful constructive discharge. Alex works as a nurse at a surgical center. She notices a number of health and safety violations and reports the center to the state government. Alex isn’t fired after making these whistleblower complaints, but her work conditions change significantly. Her hours are cut, and she is assigned all of the worst jobs at the surgical center — things that had previously been shared among the staff. She feels that she has no choice but to quit, particularly because she can no longer pay her bills with these reduced hours.
In this case, Alex could have filed a lawsuit if her employer fired her for reporting the health and safety violations. Retaliating against whistleblowers for reporting these types of violations is illegal under California law. For this reason, if Alex can prove that she was constructively discharged, then she will be able to file a claim against her employer for wrongful constructive discharge.
How Long Do You Have To File A Lawsuit For Wrongful Constructive Discharge?
In the legal system, there is a time limit for filing civil legal actions. This is known as the statute of limitations. In employment law cases, the statute of limitations for wrongful constructive discharge depends on the type of termination at issue.
Generally, you have two years to file a claim for wrongful termination in violation of an implied oral contact or for a violation of public policy. As of January 1, 2020, there is now a three (3) year statute of limitations for wrongful constructive discharge of a whistleblower or for a violation of California’s Fair Employment and Housing Act (FEHA), which covers employment discrimination, harassment, retaliation and failure to accommodate.
In constructive discharge cases, the clock starts to run when a person leaves their job — not when their job conditions become intolerable. This makes sense, as it would be impossible to file a claim for wrongful termination/constructive discharge until you have actually left your position.
Importantly, in many employment law cases, there are additional steps that must be taken before a lawsuit can be filed. For example, if you were constructively discharged because your employer wanted to get rid of older employees, you may have an age discrimination case under the FEHA. In this situation, you will either need to file a claim with the California Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC) within a certain number of days of your constructive discharge. An experienced wrongful termination attorney can help to ensure that you follow the proper procedures and meet all applicable deadlines if you experienced wrongful constructive discharge.
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Some employers think that they can avoid responsibility for illegally firing someone by making their work life so miserable that they quit. Whether your employer terminates you or forced you to quit, if the underlying reason was illegal, then you may have a legal claim.
The legal professionals at Odell Law are dedicated to helping employees who have suffered injustice. We represent clients throughout Southern California who have been subjected to discrimination, harassment, and retaliation. To learn more or to schedule a free phone consultation, call us at 949-833-7106 or email us at any time.
Please note that this article if for informational purposes only and not meant to constitute legal advise or establish an attorney-client relationship. This article is also meant as an attorney advertisement and not intended for anyone under the age of 13. Any questions regarding its content can be sent to firstname.lastname@example.org.