Being the victim of wrongful termination, constructive dismissal, or constructive discharge can lead to an incredibly stressful time in your life. These types of dismissals can result in upheaval to your whole life. It can be hard to make ends meet while you are looking for another job. In many cases, it is difficult to obtain a reference when you have been constructively discharged, since your former employer may not be eager to provide you with a reference.
If you believe you have been constructively discharged or otherwise wrongfully terminated from your job, you may be able to sue your employer. There are a few requirements that your case must meet before you are likely to succeed. Learning about the legal concepts of wrongful dismissal and constructive discharge is the perfect place to start when considering whether you have a claim.
What is Wrongful Termination?
Wrongful termination is a broad, blanket term that covers a wide range of reasons for being fired or let go from your job in a wrongful way. For example, being fired in violation of anti-discrimination laws constitutes wrongful termination. Additionally, if the terms of your verbal or written employment agreement are violated by your employer by dismissing you, this also counts as wrongful termination.
If you believe you have been wrongfully terminated for any reason, you need to be sure you behave in a certain way to preserve the integrity of your case:
- Never disparage or say anything against your former employer to others in person or on social media
- Do not carry out any type of retaliation against your employer or staff
- Review a copy of your employment agreement if you have one
- Ask your employer to put their reasons for terminating you in writing
- Ask for a copy of your personnel file
- Review any documentation you have regarding your employment, including performance evaluations, annual reviews, and any feedback from clients or customers
- Return all company property promptly
- Contact an employment law, wrongful termination, or constructive dismissal lawyer
You may also want to ask about a severance package at this time. Be sure to leave the negotiation up to your lawyer, if you hire one, to ensure you receive everything to which you are entitled. Employers tend to try to get away with paying the bare minimum in these cases, so be sure you are ready to negotiate or let your employer know they can negotiate this with your lawyer.
What is Constructive Dismissal or Constructive Discharge?
Constructive dismissal, or constructive discharge, is a type of wrongful termination. It happens when an employee feels forced to quit or otherwise leave their position due to intolerable working conditions. Instead of being outright fired by the employer, the employee feels that they have no alternative but to quit.
Since the employee’s resignation was the only reasonable course of action for the employee to take, the courts overlook the fact that they quit. If the employee can prove that the conditions were intolerable and that they had no alternative, the courts treat the employee as though they had been fired.
What are the Elements of a Constructive Discharge Claim?
Under current California law, an employee must be able to prove that:
- The working conditions were so poor that any reasonable person in their shoes could have seen resignation as the only option
- The employer must have been made aware of the conditions or otherwise intended to force the resignation
Essentially, the employer must prove that the working conditions were abnormally adverse, that any person in their situation could see quitting as the only way to cope with this situation, and that the employer was aware of what was wrong and choose to do nothing. Individuals in these types of working environments should be sure to keep a record of any communications they have with their employer about their working conditions. Ideally, you should make your complaints in writing, so there is a detailed record.
In most cases, the court looks for a pattern of this type of behavior. One-time incidents are generally considered to be not bad enough to warrant this type of claim unless the employee can prove that the prior incident is likely to lead to others. Violence, harassment, or compelling an employee to commit a crime are other examples of one-time events the court typically accepts. However, in the absence of those extreme situations, you need to establish a pattern of intolerable working conditions.
When looking at employer conduct, the courts generally focus on the following elements:
- Was the employee asked to participate in any illegal activity?
- Did the employer acknowledge and investigate the employee’s past complaints about their working conditions?
- What type of illegal conduct did the employer engage in?
- How long after the illegal conduct did the employee resign?
Make sure you keep these questions in mind as you gather evidence to prove your own constructive discharge claim.
What is Not Considered Constructive Discharge?
Not all cases of an employee quitting due to their perceptions of their working environment constitute constructive discharge. For example, it is not enough to just be unhappy at your job; you must feel compelled to quit because things are so bad. It is also crucial that you inform your employer about these conditions. Failure to do so results in your claim automatically failing.
Things like a hot-tempered boss, a bad day at work, or receiving a rude call from a customer can certainly create negative working conditions. However, if these are only one-time occurrences, it does not constitute constructive dismissal. The negativity must be ongoing if your case is to succeed.
Do You Have to Leave Your Job First?
Some people are nervous about leaving their jobs in this manner. They may be worried about finding another source of income or being faced with unemployment. However, you should note that you cannot file a constructive discharge claim if you are still working in the same position.
Staying in a toxic working environment for quite some time before leaving does not preclude you from filing a claim the same way as still being employed by the company does. The courts in California tend to understand that people do need a source of income and sometimes they can tolerate terrible conditions for the sake of making ends meet. It is also advisable for the employee to try to correct the situation before deciding to leave. Staying and filing complaints is often the best way to do this.
If you have decided to remain in your position for a bit longer and hope to correct things or save enough money to support you through unemployment, make sure you keep records of all incidents and your complaints. You should file a new complaint any time the situation gets worse or an unresolved problem causes new issues. Technically speaking, if you are still employed by the company, you have not been discharged, so you do need to wait until you eventually leave before initiating any claims.
When Do You Have to File a Constructive Discharge Claim?
In California, there is a statute of limitations in place regarding wrongful termination claims, including those for constructive discharge and dismissals. It is important to start your claim before the limitation expires. Otherwise, courts simply throw it out. The limits involved depend on the specific type of wrongful termination suit you wish to file. When you are dealing with constructive termination in violation of an employment contract, you have two years from the date of dismissal to file your claim. This same limit applies to constructive discharges that occur in violation of public policy, such as being asked to perform an illegal act.
When you leave your job, your employer may try to tell you that the time limit to file a suit has passed or that there are no legal recourses available to you. They often do this to scare you away from filing a claim. In some cases, they may be operating under the assumption that the two-year limitation period begins when the poor working conditions did, not when you felt compelled to quit. Be sure you never sign anything from your employer restricting your right to sue. You should also seek out legal advice to be sure you are still well within the legal timeframe for a suit.
What is the Reasonable Person Test?
California courts use what is known as the reasonable person test to determine if a person’s behavior was justifiable given the circumstances. They do this by comparing those actions against how one may expect a reasonable person to act in the same position. For example, if a reasonable person would not find the working conditions so bad that quitting was their only option, your claim is not likely to succeed. However, if the courts find that a person acting rationally and reasonably could consider quitting as a response to an adverse working environment, your claim may succeed.
Even if you firmly believe you cannot function or work given your current conditions, you need to ask yourself how other people may feel in your shoes. It does not matter if you personally find the conditions to be so appalling that you cannot carry on. What matters is how the average person acting in a reasonable way may feel. Essentially, the reasonable person test measures how most people in society are likely to respond in the same or a similar situation. If you are uncertain about whether your case meets the reasonable person requirement, take the time to ask a few friends and family members about your case. If the majority of them believe that your working conditions were indeed adverse, you may have a claim. On the other hand, if they feel that your conditions were bad but not intolerable, your claim may not succeed.
What Obligations Must the Employer Fulfill?
Employers have the obligation to cultivate and maintain safe working environments for all staff members. This includes ensuring that working conditions are tolerable, legal, and safe for all employees. Employers must also make changes to unsafe or intolerable working conditions once made aware by employee complaint or their own observation.
For a constructive discharge claim to succeed, you need to prove that the employer knew or ought to have known about those unreasonable conditions and choose to do nothing about it. It is best to make sure you make your employer aware of those poor conditions, so you can prove that they had definitive knowledge about the error. Trying to prove that they should have known better is quite difficult, especially if your employers do not tend to visit or observe your workspace.
Should You Hire a Lawyer?
It can be quite difficult to prove that your working conditions were so adverse quitting was the only option. It is equally as challenging to show that your employer knew about those conditions if you do not have copies of your prior complaints in writing. Hiring a lawyer is the best way to determine if you do have a case. If so, they can also help you figure out what documents you need and the best way to gather them.
Trying to navigate the complex field of wrongful termination and constructive dismissal claims on your own can be difficult. There are a lot of highly technical legal terms involved in this type of law. Additionally, these types of cases tend to have strict timeframes for submitting documents. The success of your claim relies on your ability to file those forms on time and to fulfill each one of the elements of a claim discussed above in a persuasive way.
Hiring skilled legal counsel is the best way to proceed with these types of claims. They have the knowledge and experience you need to have your rights upheld in court. Familiarity with the system, as well as a proven track record of successful claims, is exactly what you need when dealing with this type of stressful situation.
If you think you may have a constructive dismissal or constructive discharge claim, contact Sexual Harassment Attorney today. Our lawyers have the skill you need and the fierce courtroom attitude that is needed to win cases. This competitive attitude does not carryover to client-attorney relationships, as each one of our lawyers strives to form a compassionate connection with their client. Contact work place harassment attorney today by calling 800-905-1856 to schedule your appointment or learn more about how they can help.