What is Constructive Dismissal?

By Thomas Ricotta on September 17th, 2017 in In The News

People quit their jobs for various reasons. Maybe they found new opportunities. Perhaps they were tired of the commute. Maybe they worked in a hostile environment and couldn’t stand another day in the office.

This happens more than you think. In fact, nearly half of those currently unemployed are in that situation because they quit their jobs. This amounts to about 6 million people.

When an employer fires an employee seemingly without cause, this is called wrongful termination. When an employee terminates their own employment due to a hostile work environment, this is called constructive dismissal, or constructive discharge.

Constructive dismissal is not easy to prove, however. Many people are mistreated by their bosses and co-workers. In order to file a successful claim, you must have had a specific situation apply to you.

Situations That Can Lead to Constructive Dismissal

While the law does not require that employers and employees act civilly toward each other, when trust and confidence have been breached, the employee may have a solid constructive dismissal claim.

You may have a claim if any of the following situations occurred in the workplace:

• You were a victim of sexual harassment by a co-worker or boss, and when you spoke up about the situation, nothing was done to remedy the situation.
• You were treated with hostility based on your age, race, gender, religion or disability.
• You complained about your poor treatment and you were treated even worse.
• Your boss retaliated against you for filing a workers’ compensation claim, taking leave under the Family and Medical Leave Act (FMLA), making a whistleblower complaint or seeking a reasonable accommodation.

Proving Constructive Dismissal

An employee must first prove that the employer engaged in a fundamental breach of contract.

The employee must also show that he or she resigned from their position as a direct response to the breach. Being offered a job or a situation in which the employer is not at fault is not a valid reason.

The employee is expected to attempt to resolve the issue before quitting. He or she must have discussed the situation with the employer first.

In addition, it must also be shown that the employee did not take too long to resign from his or her position.  If the person was able to endure the hostility for 20 years, then the court may not find that the employee was right in suddenly terminating his or her position.

Work with an Experienced Employment Law Attorney

If you experienced any of the situations above, you may have a constructive discharge case. You should not feel as though you must terminate your employment due to a hostile environment.

Before resigning from your position and filing a constructive dismissal claim, your first step should be to seek legal help. You may be able to hold your employer liable for actions—or lack thereof—that made the workplace unbearable. Let one of the experienced New York City employment law attorneys at Ricotta & Marks, P.C. assess your case. Contact our firm today at (347) 464-8694 to schedule a consultation.