Employees who suspect their employers are trying to get them to leave voluntarily instead of firing them outright sometimes do quit. Then they turn around and sue under the theory of “constructive discharge.” Essentially, they argue their employer made their lives so miserable they had no choice but to resign.
Fortunately for employers, courts are fairly strict in how they view constructive discharges. It isn’t enough for an employee to believe conditions at work were intolerable. He also has to show that, objectively, the environment really was intolerable.
In other words, some other reasonable employee would also have concluded he would have no reasonable alternative other than quitting.
Recent case: Jack Gercher, a surveyor who worked for the city of Chula Vista, didn’t react well when a shake-up forced him to spend more time in the office instead of in the field.
He told his supervisors he thought the restructuring was illegal because his immediate supervisor was not a surveyor. Gercher believed the law said only a surveyor could review his work. Gercher’s bosses assured him many times that his work would be checked by a surveyor and that the legal staff had cleared the restructuring.
Gercher became stressed, took time off and finally quit when wouldn’t undo the reorganization. He sued, alleging he had been forced to quit.
The court tossed out his case, explaining that there was nothing so onerous about his new job assignment that it would compel a reasonable employee to quit. (Gercher v. City of Chula Vista, No. D052431, Court of Appeal of California, Second Appellate Division, 2009)
Bottom line: Don’t let your fear that a particularly sensitive employee will quit and sue keep you from making reasonable changes.
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- Use progressive discipline—or prepare to pay unemployment even if conduct was outrageous
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- Document and retain evidence that led to firing
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