Can I Sue My Employer If I Resign?

What if your employer created a work environment so hostile and intimidating that you did not want to go to work to face him or her anymore?  Many employees faced with the same scenario believe that they have no options.  If they ultimately get terminated, they may have an avenue to bring a wrongful termination lawsuit.  But, if they resign, how could they possibly have legal recourse if they left their place of employment on their own accord, and weren’t forced out. The word itself—“wrongful termination”—implies that to bring a suit, the employee must be terminated.

Fortunately, California is among one of many states that has established laws to protect employees who resign because of their hostile working conditions.  Under the theory of “constructive termination,” an employee can sue an employer if the working conditions were so intolerable, that the employee had no choice but to quit. Essentially, the employer’s conduct forced the employee to resign, and the resignation is treated as a termination. This theory prevents employers from engaging in unlawful conduct to cause the employee to quit.

Obviously, the burden is high and does not mean any employee who resigns can automatically sue for constructive termination.  The employee must prove that the employer either “created or knowingly permitted working conditions so intolerable that an employee had no reasonable alternative but to quit.”  To do this, an employee generally must prove that the employer’s egregious conduct was continuous and persistent.  A single isolated act does not usually amount to the egregious working conditions that must be established to bring a claim.  However, under certain circumstances, a single bad act can be so intolerable that it may suffice.  For example, a violent altercation between an employee and an employer may be enough to allow the employee to bring a constructive termination claim.

As the language of the burden indicates, the employer must know of the intolerable conditions, or must purposely intend to create the conditions.  An employee cannot simply keep quiet, and then sue the employer later on down the line. To avoid this problem, employees are encouraged to complain to their Human Resources department or management about their working conditions. This provides the employer with notice of the conditions, and prevents him or her from ultimately pleading ignorance.

Importantly, an employer’s conduct must generally be wrongful in the eyes of the law, for an employee to sue for constructive termination.  That is, an employee cannot simply sue because the employer was not nice or did not treat the employee fairly.  An employer’s conduct usually must violate a statute or public policy.  For example, if an employer discriminates against or harasses an employee because the employee went on a medical leave, but does not actually terminate the employee, the employee may later have a claim for constructive termination if he or she resigns.    An employer cannot bypass the system and escape liability, because he or she refuses to terminate the employee.

A constructive termination claim is designed to protect you if you feel victimized in a hostile work environment, but have not been outright terminated. You should consult an experienced employment attorney to determine if the circumstances in your workplace allow you to bring a constructive termination claim.

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