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Can an Employee Quit and Still Sue for Wrongful Termination?
By admin | February 11th, 2016

In California, employees who have no employment contract are generally considered to be at-will employees.

Unfortunately, when an at-will employee voluntarily resigns because of a bad work environment, even if the employer was acting illegally, it makes it more difficult to sue for wrongful termination. However, under some circumstances an employee who quits can still sue for wrongful termination. This is why an employee who is thinking about quitting a job because their legal rights are being violated, should always consult with a wrongful termination lawyer before doing so. Good wrongful termination attorneys should be able to advise employees who want to quit because their rights are being violated on strategies to preserve their rights to sue for wrongful termination, even though they are resigning.

Under certain circumstances in California, an employee resignation can be treated as a termination. For example, if an employee is being sexually harassed, and has taken multiple steps to complain to management and remedy the situation, but nothing is done, a resignation may be regarded as legally a termination. Since the employer is aware of the sexual harassment and is doing nothing to stop it, the employee is placed in a situation of being forced to quit. This situation can be a “constructing discharge.” When the knowing violation of an employee’s rights by an employer creates such an intolerable situation that a reasonable employee would be forced to resign, the resignation can be regarded legally as a termination, or a constructive discharge.

The legal test to determine whether an employee was constructively discharged uses an objective standard. To establish a constructive discharge the facts surrounding the resignation must support that the employer intentionally created, or knowingly permitted, working conditions, which were so intolerable or aggravated that a reasonable employee in the same situation would be compelled to resign. In determining whether a reasonable employee would be compelled to resign, courts look to all kinds of different factors, including whether the working conditions included abuse, harassment, discrimination, or retaliation. Other factors commonly considered are demotion, humiliation, being assigned degrading work, being assigned menial work, having pay reduced, having responsibilities reduced, badgering designed to encourage the employee to quit, lowering of the employee’s status, etc.

Since the test for constructive discharge is an objective one, if that facts do not support that a reasonable employee under the circumstances would be compelled to resign, then there is no constructive discharge. This means that if the employee reaction compelling them to resign is unreasonably sensitive, there is not a constructive discharge. For example, an employee is not permitted to quit and sue simply because they do not like a new job assignment. Moreover, a resignation because of the embarrassment and hurt feelings from a demotion that was objectively warranted would not support that the employee was constructively discharged.

Objectively intolerable working conditions commonly involve a continuous pattern of objectionable conduct, which the employer does not remedy even after they are made aware of it. Generally, a single incident will not be sufficient to support a constructive discharge, however if the situation surrounding a single incident is so aggravated, one incident may be enough to support a constructive discharge. Examples of situations where a single incident may support a constructive discharge include violence being committed against the employee, or an employee quitting rather than comply with an employer’s order to violate the law.

If you work in the Los Angeles area and are thinking about quitting your job because your employer won’t stop violating your rights, then you need to find the best discrimination lawyer in Los Angeles to consult with about how to quit in a way to support that you were constructively discharged. Fortunately, there are many good Los Angeles discrimination lawyers who offer free consultations. Therefore, never resign from a job because your rights are being violated until you have spoken with a wrongful termination lawyer.