Oddly enough, an employee may walk off the job and then sue his/her employer for wrongful termination.  Even though the employer did not technically fire the employee, the issue is whether employee rights permit that resignation to be treated under California law as a “constructive discharge.”

Per the key California Supreme Court case defining and analyzing constructive discharge, Turner v. Anheuser-Busch, an employee must prove, by the “more likely than not” (preponderance of the evidence) standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in employee’s position would be compelled to resign.

Employees are required to notify someone in a position of authority of their plight so that employers unaware of any wrongdoing may correct a potentially destructive situation that may be affecting workplace rights. Mere existence of illegal workplace conduct does not, without more, make employment conditions intolerable to a reasonable employee.

Also, the adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed “intolerable,” such as a repeat pattern of discriminatory acts.  Conditions, such as employment discrimination or workplace harassment must be sufficiently extraordinary and wrongful to overcome the normal motivation of a reasonable employee to remain gainfully employed.

An employee cannot simply “quit and sue” claiming his or her reasons to quit were automatically tantamount to being constructively discharged.  The proper focus is on whether the employer coerced the employee’s resignation, not whether it was simply one out of a number of viable options for the employee.

June 15, 2009