How to Avoid a Constructive Discharge Lawsuit

In today's litigious world, there are hundreds of ways in which an employer can be sued by an employee, and it can be difficult to adequately protect yourself. Even if you believe that you are complying with every employment law in the book, you can still be caught off-guard and find yourself in a courtroom. One of those unforeseen liabilities is the concept of "constructive discharge", which is similar to the laws governing constructive eviction. If a landlord makes living conditions intolerable for a tenant, the tenant can claim that he or she was constructively evicted. The same goes for employment; if an employee claims that he or she couldn't work because you made working unbearable, he or she can sue you for constructive discharge.

Sometimes constructive discharge cases are warranted and sometimes they're not. The reason the laws exist is to keep employers from trying to "force employees out" of the business without actually firing them, which happens more often than not. For example, let's say that you are the owner of a small accounting firm, and you've noticed that one of your administrative assistants is just not cutting it. You don't want to fire her because you are worried about being sued for discrimination, so you decide to give her a little bit of an incentive to quit. You start loading her down with busy work that doesn't really need to be done, you move her desk to a darkened corner of the office where she will be uncomfortable, and you convince your other employees to ignore her. Finally, fed up with the working conditions, she quits.

You think that your plan worked marvelously, but then you receive the paperwork saying that you are being sued for constructive discharge. Your ex-administrative assistant is claiming that you made work so unbearable that she was forced to quit, which makes you liable.

To make matters worse, many employees who quit and claim constructive discharge also claim some type of discrimination to strengthen their case. At this point, discrimination can apply to just about anyone, which makes your defense even harder to plan. And unfortunately, courts are more likely to side on behalf of the wronged employee than on the side of the employer. If you are concerned about constructive discharge, here are a few tips to avoid it:

1. Keep Impeccable Records. Each of your employees should have a file, and in those files should be copies of employee evaluations. Before you fire an employee, make sure that there is a long history of documented substandard work to show the courts in case of a constructive discharge lawsuit.
2. Treat All Employees Fairly. Avoid any matter of favoritism at the workplace. Promoting one employee for reasons other than productivity or failing to promote an employee based on inappropriate reasons is just asking for a constructive discharge lawsuit.
3. Listen to Employees. If one of your employees claims that he or she is uncomfortable or unhappy with the working conditions at your business, investigate the problem immediately. Obviously, you are not require to provide million-dollar offices for each of your employees, but the conditions should be tolerable.
4. Write a Letter. If one of your employees quits, write him or her a letter stating that you are sorry he or she quit and that their job position is still available. Send the letter by certified mail and keep a copy.