Have You Been Constructively Terminated?

By Chakeema Cruickshank, Staff Writer

If you ever had to resign from a job due to intolerable working conditions, you may have been constructively terminated. Constructive termination, also known as constructive discharge or dismissal, happens when an employer forces an employee to resign by creating a hostile and intolerable working environment. It is unlawful for employers to retaliate against an employee to force resignation. Under New Jersey’s Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 to -8, a “retaliatory action” is defined as the discharge, suspension or demotion of an employee, or other adverse action taken against an employee in the terms and conditions of employment. This shows an example of conduct that would satisfy constructive termination.

This is where the New Jersey Laws against Discrimination (LAD) comes in – it protects against harassment and discrimination based on race, religion, disability and other protected characteristics. Constructive termination often targets these protected qualities. By using this tactic, employers can avoid paying employees out for lost wages. Under the LAD, an employee is expected to take all reasonable steps necessary to remain employed for a claim of constructive discharge. This can then leave employees backed into the corner of resignation.

Forced Resignations

If you were constructively terminated, you are entitled to benefits not given to employees that quit. This may include unemployment benefits and other benefits like Family and Medical Leave Act (FMLA) rights, or legal claims for discrimination and retaliation. However, in reality, it can be difficult to prove a forced resignation since the law requires employees to reasonably try and keep their jobs.

One case that explains constructive termination is Donelson v. DuPont Chambers Works, 412 NJ Super 17 (App. Div. 2010). In that case, DuPont Chambers Works claimed that an employer’s conduct, no matter how wrongful, was not sufficient for constructive termination. In that case, the wrongful conduct included a forced mental status examination, among other things. The employee eventually resigned as a result and the employer said that there was not enough evidence for constructive termination. The court agreed and the employee was not able to receive any money for lost wages.

In Padilla v. Berkeley Educational Services of New Jersey, 383 N.J. Super. 177, 178, 891 A.2d 616 (App.Div.2005), a woman claimed wrongful termination due to her pregnancy. But the jury decided that the employer’s conduct was not enough to justify her resignation. Id. at 183. Despite the discrimination and emotional distress, the lack of objective elements was fatal to the case. More specifically, the lack of economic loss as a result of the employer’s conduct was given as a reason for the result.

These verdicts shows that although the employers engaged in unlawful discrimination and harassment, it still may be inadequate to make a successful claim. This then leaves the question of what is enough to satisfy constructive termination?

Employee’s Role

To successfully argue for constructive termination, the burden of proof is on the employee to prove the work environment is intolerable to work in. Under the LAD, to be entitled to back pay, the employee must show the employer’s conduct was unlawful. The environment must be objectively intolerable and most people would reasonably choose resignation.

There must be an objective loss at hand, opposed to only subjective elements. This means that a difficult boss or unhappy working environment will not suffice. For example, a disruption in earnings can be considered an objective element. Other objective factors that may be considered are threatening to fire an employee, demoting an employee, reducing salary or benefits, or transferring an employer’s position.

These factors, if shown, can potentially be used to prove constructive termination. Moreover, the cases shown indicate that an important determinant is the economic factor. To show constructive termination, therefore, focus on the economic impact of your employer’s conduct along with the subjective elements.

Overall, deciding whether you have been constructively terminated can be a complicated question and is decided on a case by case basis. If you feel you have been constructively terminated, keep a record of your interactions with your employer showing their conduct. It is important to show that the work environment was objectively intolerable to prove a claim. Lastly, consult with an employment attorney to discuss your situation before you resign.

Staff Writer Chakeema Cruickshank is currently a first year at Rutgers Law School Camden. Prior to Rutgers Law, she worked for United States Senator Robert Menendez doing constituent relations and outreach for education, environment, and technology.