What Is Constructive Dismissal?

The law treats employees who leave their jobs voluntarily differently than those who are dismissed involuntarily. Often, it is to an employer’s benefit when an employee’s departure is voluntary.

This leads to situations where an employer may try to indirectly force employees out rather than terminating their employment. This practice is known as constructive dismissal.

Examples of Constructive Dismissal

Constructive dismissal can take many forms. Here are just a few common examples:

• Reductions in hours
• Rescheduling to less desirable shifts
• Demotions or reassignments to less desirable positions
• Pay decreases
• Verbal harassment
• Threats of termination if an employee doesn’t resign

When Constructive Dismissal Becomes Wrongful Termination

The fact that an employer did something that could be considered an example of constructive dismissal does not immediately create the grounds for a wrongful termination lawsuit. Other circumstances, such as an employee’s poor performance or the business needing to cut costs, could mean the actions were legally justified.

As the name suggests, a wrongful termination lawsuit for constructive dismissal requires proof that the employer did something wrong. The dismissal must have an illegal purpose rather than serve a legitimate business need. Examples include the following:

• Discrimination based on race, gender, religion, or other protected classes.
• Sexual harassment where the employer failed to take corrective action.
• A consequence of taking leave or requesting accommodations under the Family Medical Leave Act or Americans with Disabilities Act.
• Retaliation for a protected whistleblower report.
• An attempt to get out of a guaranteed employment contract, bonus, or salary.
• An attempt to deny unemployment benefits or a contractually obligated severance package.

How to Prove a Constructive Dismissal Claim

A constructive dismissal claim has two elements. First, you must prove that working conditions were so intolerable that a reasonable employee would feel compelled to resign. Second, you must prove the employer’s illegal motivation as outlined above.

Texas is an at-will employment state, so both employers and employees are free to terminate the employer-employee relationship at any time in the absence of a specific employment contract to the contrary. To bring a wrongful termination claim, you will need to overcome the presumption that you were just another employee who was dissatisfied with his job or that your employer was within his rights to terminate you.

Often, an effective way to bring a constructive dismissal claim is to couple it with another claim such as breach of contract, defamation, discrimination, or intentional infliction of emotional distress. To discuss your options, contact wrongful termination attorney Glenn D. Levy in San Antonio, Texas today.