Constructive Discharge: An Outlaw Employment Separation?

The "take this job and shove it" outlaw cry of the ‘70s doesn’t help employees much when it comes time to collect unemployment insurance or sue an employer for wrongful termination. Although there are circumstances where walking off a job is entirely understandable and necessary, there are repercussions that many people discover too late.

Wrongful Termination

It may later occur to you -- after you jump ship -- that you were on the verge of making a valid claim against your former employer for wrongful termination. Perhaps your employer made promises that were not kept, you were subjected to conduct that was discriminatory and violated your civil rights, you were forced to commit acts that are repugnant to the public policy of the State of California, or you were the victim of unlawful retaliation. But how can you sue for wrongful termination if you weren't terminated? You quit, remember?

If you were constructively discharged, then a wrongful termination claim may be workable. However, to prove constructive discharge, you have to essentially show that you were forced to quit. The burden will be on you to show that the working conditions or treatment were so intolerable that any reasonable employee would have had no reasonable alternative but to resign. You'll also have to show that these conditions or mistreatment happened fairly closely in time to your decision to leave. Your former employer’s attorney may well argue in response that you had alternatives and/or you failed to give the employer notice and the opportunity to resolve the problems.

In short, if you quit your job, your attorney will have to show not only that you were subjected to illegal treatment, but also that you didn't leave the job voluntarily but were forced out. This adds an extra hurdle to an already complicated legal case.

Unemployment Insurance

Basically, unemployment benefits are for employees who lose their jobs through no fault of their own and who wanted to remain employed. If you resign, you may be disqualified from receiving benefits.

If you were constructively discharged, however, then you should still be eligible for unemployment benefits. However, the burden is now on you to show that there was good cause to quit. Good cause factors are defined as substantial motivating factors causing the claimant to leave work, at the time of leaving, whether or not connected to the job, that are real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances.

There Are Often Alternatives

Your attorney should explain constructive discharge claims -- and explore your alternatives with you -- before you quit your job. Your attorney may be able to negotiate your separation from the employer on favorable terms, including severance pay, protection of your right to collect unemployment, and other benefits that may not be available to you if you quit.

If you have a choice, don’t be an outlaw; have a plan for what comes next.

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