Constructive Discharge

What is a Constructive Discharge?

In both New York and New Jersey, a constructive discharge occurs when, instead of firing you, your employer makes things so hostile that you are forced to resign. As the New Jersey Supreme Court has put it, a constructive discharge occurs when a company makes things "so intolerable that a reasonable person would be forced to resign rather than continue to endure it."

The circumstances leading to a constructive discharge have to be more than unpleasant. They have to be outrageous, coercive or unconscionable.

When is a Constructive Discharge Legally Actionable?

Not every constructive discharge is legally actionable. Generally, you can bring a constructive discharge claim only if the reason your employer forced you to resign is based on a violation of one of your employment law rights. For example, you can bring a constructive discharge claim if you are forced to quit as a result of harassment because of your age, color, gender, disability, marital status, national origin, pregnancy, race, religion, sexual orientation, veteran or military status, or another legally protected category. Similarly, a constructive termination would be legally actionable if it is the result of unlawful retaliation or a violation of your rights under the Family & Medical Leave Act (FMLA).

Proving a Constructive Discharge Claim

It often can be difficult to prove a constructive discharge claim. The law requires employees to do "what is necessary and reasonable" to keep their jobs before a resignation can be considered a constructive discharge. In addition, judges and juries can be suspicious of employees who quit their jobs only to turn around and file a lawsuit.

Similarly, it is easy for someone who did not live through the situation to second guess whether you gave your employer enough of a chance to correct the problem before you quit. This is especially true when the employer claims the work environment was not nearly as bad as you believe.

Am I Entitled to Unemployment Insurance Benefits if I Am Forced to Quit?

Under both New Jersey and New York law, an employee is not necessarily disqualified from receiving unemployment insurance benefits if he quits his job. For example, under New Jersey law an employee is not disqualified if he resigned based on a reason directly related to his job that was so compelling he had no other choice. This is similar to the constructive discharge standard, but applies only to reasons related to the job. It does not include personal reasons for quitting, such as lack of transportation, lack of housing, childcare issues, attending school, relocating for personal or family reasons or voluntarily retiring.

Consider Contacting an Employment Lawyer Before You Resign

There are certainly circumstances in which an employee should quit immediately, such as where returning to work could result in an injury or other serious harm. However, in most other situations where you believe you are being constructively discharged it is a good idea to contact an employment lawyer to discuss your situation before you quit.

If you would like to schedule an appointment with one of our employment lawyers, please feel free to either contact us online or call us at (973) 744-4000.

For more information, please read our blog article What is a Constructive Discharge?