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Make Sure Your Company Never “Constructively Discharges” an Employee


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8/12/2014
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It may be easiest to understand the term “constructive discharge” by comparing it to the legal term “constructive eviction.” In the latter situation, a tenant may choose to move out of an apartment or other residence when alleging that it has become too dangerous or unfit for safe habitation. This may be due to the water and other utilities being turned off by the owner/landlord or other similar problems. While such claims aren’t always successful, if the dangerous or harmful conditions are properly documented, plaintiffs can win their lawsuits.                   

This is somewhat analogous to what happens when an employee sues a company, claiming s/he was “constructively discharged.” The main difference is that the employee is claiming that either his/her physical safety was so endangered by the work environment-- or so psychologically damaging due to one or more forms of illegal harassment, that s/he was “constructively discharged” (or forced to leave immediately). If the claimant has strong proof of his/her charges and prevails in court, your company can be held liable for a very large sum of money in damages.

Additional Facts/Events Often Involved with “Constructive Discharge” Cases

Notice to improve the situation should be provided whenever possible. Under most circumstances, the employee should provide the company with notice of the threatening environment (making it possible to address the situation and make repairs) before s/he actually leaves. However, an employee might be legally justified in taking time off until certain repairs/changes are made;

  • All employee complaints about workplace safety and discrimination should always be taken very seriously – and thoroughly investigated;

  • During your hiring stage, be sure to tell all of your new employees that they must immediately make you aware of any seriously threatening safety concerns – preferably in writing – so that your company can quickly address them;

  • The timing of the employee resignation. Normally, a court will look to see if the complaining employee left or resigned immediately after a serious threat developed or worsened. If this did not occur, the court may doubt the legitimacy of the claim;

  • Keep in mind that even “at will” employees can file for unemployment benefits and receive them if they can prove that your unlawful workplace environment forced them to leave. (Normally, these types of employees cannot receive UI benefits -- except under specific circumstances like those sometimes present due to “constructive discharge);”

Routine Policies Your Human Resource Managers/Supervisors Must Respect

  • Document all key interactions with employees, especially those involving complaints. Conduct regular performance reviews and keep documentation of them. Also, keep a written record of all complaints employees make regarding the workplace and address them immediately. Likewise, document and investigate all supervisory complaints about employees;

  • Have regular meetings with employees at all levels and encourage them to make suggestions about improving workplace safety or perceived discriminatory practices. Be sure to create accurate meeting notes and record the specific actions taken to address all reported concerns. Remind all management staff to regularly evaluate the worksite regarding safety issues and any improper behaviors;

Finally, always speak with your Peachtree City attorney (and your in-house counsel) when complaints like “constructive discharge” are being voiced by any employees. This will help you know how to properly proceed to protect all of your interests – while also doing all you can to maintain a proper work environment.

To obtain help with handling all of your Georgia business planning needs, please contact the Law Offices of Shane Smith today.  You can schedule your free initial consultation with a knowledgeable Peachtree City estate planning attorney by calling: (770) 487-8999.



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Shane Smith
Advocate for the Seriously Injured in Georgia

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