CONSTRUCTIVE DISCHARGE

" I Quit" Wanda screamed as tears ran down her cheek. " Good luck collecting unemployment Wanda! Don't let the door hit you on the way out, oh and hey babe, don't ever apply here in the future because I run this show" Bellowed her narcissistic boss, Toxic Tony.

In this article I am going to discuss real life issues (Names changed) and examples of what Constructive Discharge is and is not. But first a definition....

Constructive discharge—also called "constructive termination," is when an employee decides to resign from their job due to an adverse work experience. Whether it's one negative incident or a pattern of behaviors and/or actions, the employee feels forced to leave because they can no longer work in what they see as an intolerable work environment.

Famous cases: Robinson v. Heinz, Turner v, Anheuser Busch, Watson v. McDonough and many others too numerous to list.

As an employer this is a short list of things that will get you a Constructive Discharge suit:

1. Inconsistency in Managing the employee population

2. Poor documentation

3. Demoting an employee

4. Radically changing the employees job description

5. Favoritism

6. Reducing the employees pay as a punishment

7. Radically changing the employees work location

8. Inconsistent Performance Appraisals

9. Inconsistent Disciplinary Actions

10. Poor Communication

So, all these are common sense so why so many cases of Constructive Discharge in the courts.

Let's look at number 3 & a true story number 1.

Toxic Tony & Angry Andy

Wanda worked as a Quality Supervisor. She was a productive exempt (salaried) employee, not a top 10 % worker but not a poor performer. She was a single Mom raising two children alone. When work was over, she immediately went home. When asked to do overtime she almost always said no. Her performance reviews over a three-year period were average, the first two years she was with the company HR had not initiated reviews, so she had no reviews till her third year. Okay, hang on I am going somewhere with this. So, her direct supervisor was not a huge fan. He often under scheduled his department (To look good to top Management) that led to a ton of Overtime later. Toxic Tony came to Andy to say a person he worked with in the past was available to hire but headcount was full. He asked Andy who he could terminate to accommodate for his "Friend". Andy immediately shouted out "Wanda, she isn't a team player she never does OT". Tony then says "Does she have any Warnings in her file? How as her last review?" No warnings in 5 years, Performance Appraisal of 3.5 out of 5 with a 3% increase last month. So, Andy brings in Wanda and tells her that she must do OT to keep her Job. Wanda tells him when she was hired, she told HR and Andys predecessor about her childcare situation and they said they could workaround it? Andy gruffly states "Well that was then, and this is now" Wanda got a babysitter because she was exempt, she got no extra income, and the childcare created a drain on her situation. Her car had an issue, but money was tight, and she had to borrow to fix the car, but she didn't quit. Tony came back to Andy and said " What's the 411 on Wanda? I just made my friend an offer to take her place, she starts in 3 weeks. Has Wanda quit yet?" Andy says no, she has done all the OT. Tony yelling " Damn it I said pop her. Reduce her pay and find something to write her up for." At 3am a very angry Tony writes Andy an ALL-CAPITAL LETTERS email " Andy, you force her out this week! Show me your management skills!" Andy met with Wanda. " Wanda we have decided to reduce your pay starting today from $85,000 to $65,000 also I have given you some new duties. You will be here an hour early to put together quality huddles for your team. " Wanda began to cry " Why are you guys forcing me out?" . Andy explained " No one is forcing you out. This is business" The next day of her new shift Wandas mother had a fever and could not watch the kids so Wanda drove them across town to her sisters while leaving a message she would be late. Her time in was at 6am she got in at 6:20am . She was told to go immediately to HR. There Tony, Andy and HR were waiting with a written warning for Wanda. "I see where this is going. You guys are inventing a paper trail to fire me". After going back and forth Andy said " Just sign it Wanda stop being so difficult all the time. Your attitude is awful and by the way I will just give you a verbal on parking in the visitors lot this time, but you need to get your stuff together and a better attitude". " I Quit" Wanda screamed as tears ran down her cheek. " Good luck collecting unemployment Wanda! Don't let the door hit you on the way out, oh and hey babe, don't ever apply here in the future because I run this show" Bellowed her narcissistic boss, Toxic Tony. Now this would be comical if it were not 100% true. Wanda rode directly to a lawyer's office to file a "Constructive discharge suit" then to the EEOC to file a complaint, then to OSHA to file safety issues she had seen then Wanda and her family got on every social media platform from Glassdoor to Google to "Inform" the public what an awful place she worked at. Wanda may have been average employee, but Wanda kept a great employee diary of things she saw, times and dates and witnesses to the events. The Judge in the case said " I am extremely impressed" as her lawyer handed it to him. As they say in Tennis, "Game, Set, Match to Wanda."

One of the dumbest things you can ever do is randomly reduce a employees pay or demote them. A demoted employee is a demotivated employee. Let me say that again " A demoted employee is a demotivated employee. I am amazed that anyone in management under most normal circumstances would think that embarrassing an employee and dropping their wage would give them a highly motivated employee. What it gives you is an angry employee who calls the Union to organize or quickly tells his peers it could happen to them.

True Story number 2 " Let's put Marco in the closet"

Marco was a long-term employee who was struggling. He was going through a divorce and one of his kids was a disciplinary problem at school. Marco was responsible for keeping the company production stats. When Joe the company COO asked for Monday report Marco apologizes saying he didn't have time to do it over the weekend but would have it by the end of the day. Around three in the afternoon Marcos sons school called to say they needed Marco to come to the school as his son was having Behavorial issues. Marco left and the COO was fuming mad. As a punishment Marco was moved out of his very nice office into the former supply closet with no windows and bad wi-fi reception. if Marco needed to use his cell phone he had to step out in the hallway. Marco signed up for excel training. Excel wasn't his strength. He was denied the training class. Marco began to see a psychiatrist. He felt humiliated at the office and his home situation was rough. Unfortunately, the HR person violated his rights and informed the COO (I have an article coming out on HR violating HIPPA and a YouTube video on that also) The COO said to Marco " I understand you are under stress, so I am going to change your job duties to help you out". Marco was thrilled until he found out his new job duties moved him to midnight shift off of days and also made him part time. Which meant he would lose his benefits. Marco filed a Constructive Dismissal lawsuit.

Remember each state and country (especially Canada, has different laws and guidelines. If you are going to change an employee from full to part time you better give them ample notice and check your local laws.

Last Story

Judys Journey

I lived in Alexandria Virginia and drove to my office in Haines Point Washington DC. On a map it is only 10 minutes away but driving down the GW Parkway and across the 14th street bridge on a weekday (forget Cherry Blossom Time) it could take an hour to 95 minutes. So, I carpooled. Judy worked as HR Generalist for a company that was next to mine. One day Judy was very excited she and her husband were going to have a baby. That day she told her boss, on the ride home she looked sad, she said when she told him he didn't say congratulations he ranted on "Who is going to do Open Enrollment? Who is going to do the career fairs?" she was disappointed in the response. Now that does not equal Constructive Termination obviously but a few months later Judy showed me this confidential Job posting in the Washington Post. "Mel. this sounds like my job!" Judy said. I told her, no you are being paranoid cause they have been cold lately. "Oh yeah, they screwed up and used the PO Box I use for the company when I place the ads !"Judy said very angry.

Couple weeks later Judy got in my car for the trip back to Virginia, crying. " They just transferred me to Catonsville, Maryland as a Benefit Assistant, Same pay but OMG that commute to Baltimore it's over an hour without traffic with traffic it may take two hours. "I have to go over the Wilson Bridge that's worse than the 14th street bridge and I'm pregnant!" Judy did it though....for a while before they transferred her to Germantown Maryland. They continued adding new job responsibilities. After she had the baby, she returned but she later quit and sued for Constructive Discharge. The Employer settled out of court for a huge sum.

You get the gist. Many stories which all go back to poor management. Not every time some changes for an employee is it a Constructive Discharge as is not every time a person makes an offensive remark sexual harassment, it has to be repeated or a pattern in most cases.

It's a simple solution, Document everything. Stay consistent. It doesn't matter the intent it's the impact on the employee.

You follow the HR Czars advice on this.

Write every email you send as if it will be read in court, leave every Voicemail and verbal conversation as if it will be recorded and played back in court. Stay fair and consistent. Update your Employee Handbook yearly. Do fair performance appraisals. Coach for better performance or turnover rogue Managers. Lastly hire HR professionals with experience. This isn't juggling. HR is a profession. You hire someone that has no experience in these areas then you are hiring a juggler who juggles hand grenades and brother...... and sister if they drop one of those, your company is history.