What is constructive dismissal?

Constructive termination, though involving a resignation instead of a firing, can give rise to an employment law claim.

Commonly, employment law claims for wrongful termination involve an employee's firing for an illegitimate or discriminatory reason. Examples of wrongful termination include letting an employee go for whistleblowing activities, retaliating against an employee who properly used medical leave or short-term disability, or firing an employee based on his or her gender, race, religion, political affiliation or national origin.

Wrongful termination claims don't always involve a worker's firing, though. In some instances, the employee is not fired by his or her employer, but instead resigns because the conditions of employment are so intolerable that no reasonable person could be expected to deal with them. This is known as "constructive dismissal," (also called "constructive discharge" or "constructive termination") and it can give rise to an employment law claim.

Elements of constructive dismissal in California

Like other employment law and wrongful termination claims, there are certain elements that need to be shown in order to successfully bring a constructive dismissal claim. These are:

  1. That the "working environment was so unusually adverse that a reasonable employee in his or her position would have felt compelled to resign," AND
  2. That the "employer either intended to force such resignation or had actual knowledge of the intolerable working conditions."

Proving a case

The situation leading to a constructive dismissal must be sufficiently and persistently negative to make it basically impossible for a reasonable employee to work there any longer. It usually takes a pervasive pattern of behavior, over a period of time, before a showing is made that negative behavior on the part of one's employer rises to the level of constructive discharge.

For example, giving an employee a single negative performance review, even if that review was unwarranted, will not likely give rise to a constructive dismissal claim. However, a series of negative reviews, combined with a gradual loss of responsibilities around the office, a demotion or pay cut, a shift in hours, and isolation from other employees, could indeed result in constructive dismissal. Such a negative and all-encompassing workplace environment would be difficult for anyone to endure.

Getting the help you need

If you are the victim of workplace bias, discrimination, harassment or wrongful treatment, you may be able to bring legal claims against your current (or former, in the case of constructive dismissal) employer. To find out more about your legal rights, and the options that may be available to you, consult an experienced employment law attorney like those at the office of Bononi Law Group, LLP. Call the firm at 213-553-9200 or toll-free at 866-295-7512, or send them an email today to schedule a free consultation to discuss your case.