Frequently Asked Questions - Wrongful Termination / Constructive Discharge
The Law Offices of
THOMAS C. WALKER
228 Hamilton Avenue, Third Floor
Palo Alto, CA 94301-2529
Employment Law Practice
Wrongful Termination & Constructive Discharge
What's the definition of a Wrongful Termination?
Simply stated, if you have been involuntarily terminated from employment for reasons that violate federal or state statutes or public policy - your termination is wrongful. Additionally, if you have been forced to quit due to an intolerable working environment it is possible you have suffered a constructive discharge which is legally similar to a wrongful termination.
Examples of Wrongful Terminations would include terminations for motives relating to certain types of discrimination, whistleblower retaliation, employer bad faith and dishonesty, and other motives & conduct that violate public policy and protective statutes.
So, are there several types of Wrongful Termination?
You might say that's true. Wrongful termination is a catch-all concept that includes all the different claims that might be made following an unlawful termination of employment or constructive discharge under any federal and/or state law.
Is it a Constructive Discharge to refuse to work for an abusive boss?
Not likely. A Constructive Discharge occurs when you've resigned because the work environment was so offensive, hostile, or intolerable any reasonable person would have felt compelled to resign. This is not a easy standard, courts have held that an employee may need to inform a superior about the situation and "his plight" and the hostile conditions may need to be truly "intolerable" and "severe". Merely having a bad boss with a bad attitude isn't sufficient.
Sexual harassment is often sufficient to maintain a Constructive Discharge complaint under the Fair Employment and Housing Act in California, FEHA. This is something to discuss with an attorney before you act.
I think I've been a victim of a Wrongful Termination, what can I do about it?
You can acquaint yourself with websites like the one maintained by the U.S. Equal Opportunity Commission EEOC or the California Department of Fair Employment and Housing DFEH if your feel your termination was due to discrimination. Keep in mind you have to act promptly, the EEOC. generally requires filing within 180 days of the alleged violation (300 days in California cases). You can also submit a complaint yourself, but there are many benefits of having an attorney submit on your behalf.
Again, there are other types of Wrongful Termination in addition to complaints based in discrimination, as discussed above. Once you've gathered your facts, you should discuss your situation and explore your strategies with a qualified attorney.