Martindale-Hubbell Peer Rated
Super Lawyers - David H. Ben AsherSuper Lawyers - Jonathan I. Nirenberg
Rabner Baumgart Ben-Asher & Niremberg PC
Bergen County's Top Lawyers 2023

Constructive Discharge

What Is a Constructive Discharge?

Constructive DischargeIn both New York and New Jersey, a constructive discharge occurs when, instead of firing you, your employer makes things so hostile that you essentially have no choice but 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").

In addition, before you can succeed on a constructive discharge claim, you need to prove you did "what is necessary and reasonable" to keep your job before you resigned. Exactly what that means can vary depending on the circumstances. However, simply quitting because your work environment has become hostile typically is not enough to support this claim.

Proving a Constructive Discharge Claim

It often can be very difficult to prove a constructive discharge claim. In addition to the high legal standard described above, judges and juries can be very suspicious of an employee who quits 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 as bad as you claim.

Related Claim: Harassment

Since a constructive discharge claim results from an extremely hostile work environment, most people who assert a constructive discharge claim also bring an harassment claim. You can learn more about this related (but much easier to prove) claim on our workplace harassment page.

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 that he had no other choice but to quit.

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, or relocating for personal or family reasons.

Consider Contacting an Employment Lawyer Before You Resign

There are certainly circumstances in which an employee should quit immediately, such as if returning to work is likely to result in suffering a physical 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 (201) 777-2250.

For more information, please read one of our blog articles:

Client Reviews
"I worked with Jonathan Nirenberg, ESQ on a sensitive emotional employment matter. Mr. Nirenberg was quick to respond, offered excellent advice, and always followed up with phone calls or emails when needed. My situation was settled out of court within a short period of time with the best possible results for not just me but also for the employer. Highly recommend and would seek his help again if needed..." Linda Busch, PhD
"We've had the pleasure of working with Jonathan on multiple individual and class employment cases. Jonathan is a skilled, dedicated and caring attorney that works diligently to bring justice for his clients. We would recommend Jonathan as a legal resource for any employment cases." Stephan Zouras, LLP
"I felt alone and without a voice, until I hired Jonathan I. Nirenberg of Rabner Baumgart Ben-Asher & Nirenberg, P.C. Mr. Nirenberg represented me in an employment matter. Without his help, I know that I would not have had the extremely successful outcome I had. Jonathan was not only professional, but very empathetic to what happened to me. Jonathan gave me support, and options in relation to a challenging employer/employment situation which was an extremely difficult time in my life..." Shelly Smith