Created by FindLaw’s team of legal writers and editors | Last updated December 05, 2018
Constructive dismissal, also known as constructive discharge or constructive termination, is a modified claim of wrongful termination. Wrongful constructive dismissal occurs when, instead of firing the employee, the employer wrongfully makes working conditions so intolerable that the employee is forced to resign. As in wrongful termination, the employer must violate the employment contract or public policy by targeting the employee. Continue below to learn more about constructive dismissal.
See FindLaw’s Wrongful Termination section to learn more.
What Is Constructive Dismissal?
Most states recognize the legal concept of constructive dismissal, in which an employee quits because the working conditions have become so intolerable that he or she can no longer work for the employer. Even though the employee voluntarily quit, the employee had no reasonable alternative because of the intolerable working conditions.
The employee’s resignation is overlooked for legal purposes because the employment relationship was in effect terminated involuntarily by the employer’s conduct. In this situation, the resignation is treated as a firing. If the employer’s actions constitute unlawful conduct or a breach of an express or implied employment contract, the employee may have a claim for wrongful constructive dismissal.
Elements of a Constructive Dismissal Claim
An employee can’t simply quit and claim that he or she was constructively dismissed. For example, California requires an employee to prove that:
- His or her working environment was so unusually adverse that a reasonable employee in his or her position would have felt compelled to resign, and
- The employer either intended to force such resignation or had actual knowledge of the intolerable working conditions.
An employee claiming to have been constructively dismissed must show that the conditions giving rise to the resignation were sufficiently extraordinary and egregious to overcome the normal motivation of a competent and reasonable employee to remain on the job.
Generally, a continuing pattern of extraordinary and egregious conduct is required before an employee’s resignation will be considered a constructive dismissal. A single negative evaluation or other isolated acts don’t typically establish intolerable or unusually adverse employment conditions. However, in severe situations, a single act, such as a crime of violence by the employer against an employee or the employer’s requirement that an employee commit a crime, may be enough to constitute unusually adverse conditions.
In addressing whether an employer’s conduct amounts to sufficiently intolerable or egregious working conditions to permit constructive dismissal, courts focus on factors including:
- Whether the employee was requested or required to participate in illegal activity;