Usually, an employee must be fired to sue for wrongful termination. However, a former employee who technically quit may still be able to bring a wrongful discharge claim in the form of a constructive discharge or constructive dismissal claim. Proving constructive discharge can be challenging as it requires the employer to essentially force the employee’s hand and make them quit.
To help understand whether you may have a constructive discharge claim, contact EMP Law. You explain what happened, and our experienced Winston-Salem, NC employment lawyers advise you on your options. If your situation fits, we can guide you through the law on constructive discharge in North Carolina and help you recover compensation for the wrongful loss of your job.
Learn how we can assist you by calling (336) 724-2828 or sending us an online message today.
What Is Constructive Discharge?
North Carolina has not officially adopted the constructive discharge claim. Yet, North Carolinians can still raise it because federal courts recognize it, including the Fourth Circuit Court of Appeals, which hears appeals from North Carolina.
As the employee, you may raise a constructive discharge claim when two things are true. First, your working conditions must have been so intolerable they compelled you to resign. Second, you must have actually resigned because of those conditions.
Intolerable Conditions
Whether working conditions were so intolerable that you had no choice but to quit depends on the reasonable person standard. In other words, would a reasonable person have felt they had no choice but to resign? Conditions are not considered intolerable just because you subjectively felt compelled to resign. Neither are they intolerable enough to support your claim if a reasonable person would have merely considered resignation the best option.
Resignation Due to Intolerable Conditions
You must have actually quit your job as a result of the intolerable conditions. If you merely gave serious consideration to quitting or came close, that will not suffice for a wrongful termination claim.
When Is Constructive Dismissal Illegal?
Most employment is at will, meaning you may quit, and an employer may fire you for almost any reason. Because constructive discharge is equivalent to being fired, these claims go hand-in-hand with wrongful termination claims.
A constructive dismissal lawsuit usually involves claims like:
- Discrimination,
- Retaliation, or
- Termination in violation of public policy.
You may also raise constructive discharge if you apply for unemployment benefits.
Discrimination
Anti-discrimination laws forbid employers from treating employees differently based on, among other things:
- Race,
- Sex,
- Gender,
- Sexual orientation,
- National origin,
- Age,
- Disability,
- Religion,
- Pregnancy, or
- Genetic information.
To prove discrimination, your employer must have fired you because you have such a characteristic.
Retaliation
Employers also cannot fire employees for engaging in protected activity, which covers a wide range of activities like:
- Requesting fair pay;
- Participating in or filing an anti-discrimination complaint;
- Reporting or participating in workplace safety investigations;
- Opposing, reporting, or refusing to participate in an employer’s illegal activities; and
- Taking unpaid leave under the Family and Medical Leave Act (FMLA).
You cannot be fired for engaging in a protected activity in good faith.
Public Policy
To raise a wrongful discharge in violation of public policy claim, you need to prove the reason your employer fired you violates a state or federal policy. You need to identify a specific law or policy to bring a claim.
Unemployment
To receive unemployment, you must have left your job for good cause, not misconduct. Constructive discharge can qualify as a good cause.
Constructive Discharge Examples
Constructive discharge sets a high standard that can be hard to understand in practical terms. Consider the following examples of what may and may not qualify as constructive discharge.
Risking Employee Safety
An employer requiring window washers to clean windows on high rises without safety equipment may create a constructive discharge claim. An employer that provides appropriate safety equipment may not, even though the job is risky.
Requiring Illegal or Unethical Conduct
An employer that requires its accountants to regularly conceal income, thereby committing fraud and risking personal criminal liability—may constructively discharge an employee. An employer that asks an accountant to fudge the numbers on one occasion would not likely be found to have constructively discharged them.
Failing to Make Reasonable Accommodations
The laws prohibiting discrimination based on disability and religion require that employers make reasonable accommodations to help employees complete their work.
An employer that refuses to allow a disabled individual to use a wheelchair to perform tasks that do not require the employee to stand may create a constructive discharge claim. An employer that fails to provide a sign language interpreter at key meetings may not.
How to Prove Constructive Discharge
To prove constructive discharge, you need to present extensive evidence about the work conditions you endured.
This typically involves:
- Collecting employment-related documents,
- Interviewing witnesses, and
- Carefully reviewing all available evidence.
An experienced attorney can guide you, identifying the most valuable evidence, uncovering documents your employer wants to hide, and presenting what happened in a comprehensive narrative before a court.
Speak with an Experienced North Carolina Employment Lawyer from EMP Law
The employment attorneys at EMP Law have years of experience handling wrongful termination claims, including constructive dismissal. Raising a constructive discharge claim requires legal knowledge and a careful framing of how intolerable your work conditions were. Contact us online or call (336) 724-2828 to learn more about claiming constructive dismissal in North Carolina.
With offices in Winston-Salem and Charlotte, we assist employees throughout our state.
Michael provides compassionate, diligent, and creative legal services that are tailored to meet each client’s specific needs. His experience relating to clients from diverse backgrounds makes him well suited for representing his clients across a broad range of legal areas. He practices in the areas of employment law and family law, and is experienced in criminal law.
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