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What is Constructive Discharge and Could it Get You in Trouble?

West Palm Beach Business Litigation Attorney 2023-01-26 16-49-13

If you have a business, you probably are somewhat aware of the situations where you don’t want to discriminate. But it does happen that for whatever reason, you may have an employee that, frankly, you just don’t like.

Your Plan

Let’s say you are concerned that firing an employee can get you in legal trouble. So you have a better idea. Instead of firing the employee, make his or her life a little more difficult. Give the employee trouble. Allow other employees to say or do what they want to that employee. Leave the employee out of meetings, or give them a few more reprimands than you normally would.

Then the employee will just quit, and you are free from liability, because it was the employee’s decision to leave, not yours.

Sounds like a good idea? It’s not—and it can still get you sued.

Constructive Discharge

That’s because Florida recognizes what is known as constructive discharge. Constructive discharge is firing someone without firing them; the law recognizes that an employer can make life so difficult and unpleasant for an employee, that it’s like the employee was fired, without actually being fired.

When the employee quits in this situation, he or she isn’t actually quitting—it’s that the employee’s life has been made so miserable by the employer that the employee was constructively fired.

And if the employee can prove that he or she was constructively fired by your business, the employee then has the right to bring whatever legal causes of actions, claims or lawsuits that the employee would have had if the employee had actually been fired.

What Needs to be Proven?

Constructive discharge or firing is very similar to a hostile environment workplace claim. Someone may be harassed because of things like age, disability, gender, race, or national origin, but doesn’t have to be.

The employee must show that you, as the employer, have made the workplace so difficult, so unpleasant, and so discriminatory or demeaning, that no reasonable employee would ever stay working in that job.

The key is pattern—the employee must show numerous incidents of events, none of which individually has to be so severe, but together, shows a constant and repeated pattern of discrimination or difficulty.

The behavior to warrant constructive discharge can be less than outright discrimination. For example, constantly refusing to provide an employee safety equipment, or allowing other employees to make fun of the employee, or barring an employee from having access to certain in-office benefits that other employees get, may warrant a constructive dismissal claim.

The closer in time between the alleged hostile behavior towards the employee, and the employee’s quitting or resignation, the more likely it is that there has been a constructive discharge.

Additionally if there is a reason to retaliate–for example the employee has complained about being discriminated against, or has said that he or she will report the business’ behavior, or the employee has made a workers’ compensation claim–it will be more likely a court would find constructive discharge.

Call the West Palm Beach business litigation lawyers at Pike & Lustig today for help with your business and employment law problems or issues.




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