Pros And Cons Of Constructive Discharge

Constructive Discharge

Constructive Discharge consists of two elements: (1) the employer 's conduct must have created working conditions so intolerable that an employee is forced to resign; (2) the employer must have acted “to encourage or discourage membership in any labor organization” within the meaning of section 8(a)(3).

In Control Services, the Company made unilateral changes, without bargaining to a lawful impasse, to the employee’s hourly wages and medical benefits which were found to be a violation of the Act. As a result of these unilateral changes, some of the employees quit their jobs, and the Board held this created a constructive discharge. The Board said the elements were met because the unilateral change in pay and medical

The choice to give up the statutorily-protected rights or face termination must be clear and unequivocal leaving the employee no room for inference or guesswork. In Smith Industrial Maintenance, six employees left their employment due to contract violations that began six to 17 months prior, and this, according to the Board, was indicative that the employees had endured the situation for months making it difficult to determine the reason for their decision to

EEOC an employee claimed he retired as a result of the discriminatory denial of his promotion. The employee argued that the denial due to reorganization forced him to retire or take a demotion constituting constructive discharge. The Fifth Circuit found that unequal pay is not typically considered constructive discharge unless it is career ending, and the employee has the burden of showing aggravating factors outside the discriminatory act itself. If the employee cannot show these aggravating factors, he or she would be expected to remain on the job to fight the discrimination.

Does it matter what how significant the wage cut was, whether the employee left for a higher paying position, or quit only to be