HOW TO AVOID CONSTRUCTIVE DISCHARGE LAWSUITS
The term “constructive discharge” describes a situation in which an employee is forced to quit a job because the employer has made working conditions intolerable. Working conditions may be considered intolerable, if, for example the employee is discriminated against or harassed, or if he or she suffers a negative change in pay, benefits, or workload for reasons that are not performance-related. In most cases, an employee who voluntarily leaves a company – as opposed to one whose employment is terminated by the company against his or her will – is not entitled to unemployment benefits and loses the right to sue the company for wrongful termination.
But the law recognizes constructive discharge as an exception to the rule. In an increasing number of cases, employees are quitting their jobs, filing wrongful discharge suits against their former employers, and – here is the kicker – coming out a winner. The courts have reasoned in these cases that the employers made the workers’ jobs so unbearable that they would rather quit than suffer more abuse. Being compelled to quit was much the same as being unfairly discharged. This claim commonly known as constructive discharge, essentially excuses the employee from being the one to sever the employment relationship.
How To Avoid Constructive Discharge Lawsuits
Business owners can take a number of steps to strengthen their defense against charges of constructive discharge. One option is to implement a formal complaint system and encourage employees to make use of it. These systems, when effectively implemented, give the company a chance to rectify problems before they lead to lawsuits. Another recommendation is to establish and follow company guidelines for informing employees of performance problems and taking disciplinary action. A business analyst advised, “Don’t unnecessarily put the employee in a “sink or swim” situation. Conduct regular training sessions; ensure employees receive performance feedback regularly and understand company expectations” In addition, businesses should ensure that any necessary downsizing measures are undertaken using objective rather than subjective criteria.
Another important suggestion for business owners is never to change the conditions of employment in order to get employees to resign rather than having to fire them. Attempts to force an employee to resign by making working conditions intolerable or hanging job duties, is not a good idea. In fact, such attempts can have a deleterious impact on the morale of supervisors or other employees charged with implementing such a strategy. Instead, companies should always follow their standard procedures for discipline and termination. These procedures should include probation periods for employees with performance problems. It may also be helpful to request a letter of resignation from employees who quit voluntarily and keep it on file as evidence of their reasons for leaving the company.
Finally, exit interviews should be made mandatory for all employees who leave the company. The exit interview gives management an opportunity to iron out differences with employees who quit with hard feelings toward the company. But the best policies a business can follow to avoid being sued for constructive discharge, however, are to promote fair management practices and stamp out any negative environmental conditions that begin percolating the workplace. After all, a healthy working environment not only helps keep constructive discharge away, but promotes overall business success. The best advice, as always, is to play it straight with employees. There is no substitute for allowing them to air grievances, correcting problems with working conditions and disciplining them fairly for unsatisfactory work.
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