Employment & Labor Insider

Some employers really, really hate to fire employees. That doesn't mean they won't do it - but they'll do just about anything to avoid calling it what it is.

A few months ago, I wrote about "bogus RIFs" - when an employer tries to avoid "firing" an employee by claiming it's really a "reduction in force."

There's another kind of "alternative" separation called a constructive discharge.

Under federal law, a "constructive discharge" occurs when the employer deliberately makes working conditions so intolerable that a reasonable person in the employee's position will feel compelled to resign. It can also include a forced resignation. In the eyes of the law, a constructive discharge is the same as an out-and-out firing, and sometimes it's worse.

The U.S. Supreme Court agreed this week to decide when exactly the statute of limitations begins to run on a constructive discharge claim.

Since constructive discharge is hot right now, it must be time for a quiz! As always, the answers are provided, so there's no pressure.

Are you ready to test your knowledge? Set? GO!

1. Loretta applies for a coal miner job at Mach Mining Company, and is hired. She quits after four hours on the job because the work is filthy and backbreaking. Does Loretta have a constructive discharge claim against Mach Mining?

A. Yes, because most reasonable people would not want to work as hard as coal miners do.

B. No, because Mach Mining did not "deliberately" make her working conditions intolerable.

The correct answer, of course, is B. Difficult, dirty, or dangerous work is not enough in itself to be the basis for a constructive discharge. There has to be some "intent" on the part of the employer.

2. Joe's employer has strong, but not conclusive, evidence that Joe is embezzling. The company can't prove it beyond a reasonable doubt, but they don't want him there any more. Joe's boss calls him in and tells him to submit a letter of resignation. Joe replies, "Oh, yeah? Says who? What if I don't?" Joe's boss says, "If you don't resign, you'll be fired for suspected embezzlement." Joe decides it will be easier to find another employer to embezzle from work for if he resigns, so he does. Has Joe been constructively discharged?

A. Yes, because his employer forced him to resign.

B. No, because it was Joe's decision to resign.

The correct answer is A. There is nothing wrong with this type of "constructive discharge," but employers do need to be aware that for all legal purposes it is the same as a termination.

3. Lulu works at a facility that is permeated with sexual touching, talk, and images. Lulu makes several complaints to management, whose response is, "Lighten up, Baby - don't be such a prude." Nothing is ever done about the work environment. After a co-worker corners her in the supply closet and starts trying to make out with her against her will, she walks off the job and never comes back. Has Lulu been constructively discharged?

A. Yes, because the employer deliberately made working conditions so intolerable that a reasonable person in Lulu's position would have felt compelled to resign.

B. No, because at worst the employer was only negligent. No one was trying to force Lulu out.

C. No, because maybe Lulu's employer is a pornographer.

The correct answer is A. The courts find that an employer who allows a hostile work environment to fester - whether it's based on sex, race, ethnicity, or another "protected category" - can be liable for a constructive discharge if the situation gets so bad that an employee quits. (The ones who stay can sue, too, but not for constructive discharge.)

4. Bill Lumbergh wants to fire Milton Waddams, but his HR consultants, Bob and Bob, have told him that firings are not advisable because they're "too confrontational." Instead, they advise Lumbergh to take Milton's red Swingline stapler away, quit paying him, and move his desk to the basement so he can "do something about the cockroaches." If Milton were to quit instead of setting the office on fire and running away to the Caribbean with the money Peter stole, would he have been constructively discharged?

A. Of course, silly!

B. Yes.

C. ¡Claro que si!

D. All of the above.

The correct answer is D. (Hey . . . this question wouldn't be based on a movie reference, would it?)

And remember when I said that sometimes a constructive discharge can mean more legal trouble for the employer than an honest firing? This could be one of those instances. If Milton had simply been fired, he might or might not have had a valid legal claim. But do you think he'll have valid legal claims based on what Lumbergh and the Bobs did to him? Hmmm . . . wage-hour, intentional infliction of emotional distress, theft/conversion . . . and probably workers' comp from the roach bites.

5. Let's say Lumbergh quit paying Milton, took away his stapler, and moved him in with the roaches on November 15, 2014, but Milton didn't actually quit his job until the following August 15, 2015. If Milton wants to file an EEOC charge claiming constructive discharge based on age discrimination, and if he lives in a state that requires EEOC charges to be filed within 180 days of the last discriminatory act, what is his filing deadline?

A. May 15, 2015, give or take a few days.

B. February 15, 2016, give or take a few days.

C.  We'll just have to wait and see, won't we?

The correct answer is C. This is what the U.S. Supreme Court agreed to decide this past Monday in the case of Green v. Donahoe. We'll keep you posted!

. . . AND ALSO OF INTEREST . . . 

*For some other blog commentary on the Supreme Court's decision to review the Green decision, visit Philip Miles and Jon Hyman. And thanks to my colleague and next-door-office neighbor, Bill McMahon, for suggesting today's topic.

*David Phippen is back with the March-April Edition of Constangy's Executive Labor Summary, including an update on quickie elections, Walmart's woes, and why calling your boss "a NASTY M***ER F**ER . . . !!!!!!" is legally protected activity. Read all about it!

*As I promised last week, here is the bulletin that Brian Magargle and I wrote together on the EEOC's proposed wellness rule. Brian practices in the areas of the HIPAA and the Affordable Care Act, so he and I had some good yin-yang goin' on.

*By the way, we will have a bulletin on the Supreme Court Mach Mining decision any minute. If you are not already on our newsletter mailing list, send me a message, and I'll make sure you are on.