What is a Constructive Discharge?

A constructive discharge is a legal term that applies when an employee has not been officially terminated, but has been exposed to difficult working conditions that effectively forced him or her to resign. The employee may want to bring a wrongful termination lawsuit, but cannot claim that they were actually terminated. In this case, a constructive discharge claim may be used to show that the employee was forced out of his or her job by their employer.

A.R.S. § 23-1502 sets the conditions for claiming a constructive discharge in Arizona. There are essentially two paths of constructive discharge, one which requires the employee to notify the employer of the difficult working conditions before resigning, and one which does not require any such notice.

Arizona’s Constructive Discharge With Notice Law

The first type of constructive discharge exists when there are objectively unpleasant or difficult working conditions that would compel a reasonable employee to resign. The employee can only claim this type of constructive discharge if they have given written notice of the difficult conditions or if the employer has waived their right to receive notice (explained below).

The employee must give notice by fulfilling the following conditions:

  • The notice must be in writing and explain the difficult working condition
  • The notice must be given to an appropriate representative of the employer
  • The employer has 15 days to respond to the employee’s notice, in writing

The employee can take off work while awaiting the employer’s respond if the employee reasonably believes that they cannot continue working during this period.

Arizona’s Constructive Discharge Without Notice Law

The employee can claim constructive discharge without notice if the employer or a managing agent of the employer engages in outrageous conduct. Evidence of outrageous conduct, such that would cause a reasonable employee to feel compelled to resign, could include sexual assault or threats of violence against the employee or a continuous pattern of discriminatory harassment.

An employee can also bring a constructive discharge claim without notice—even if there is no outrageous conduct by the employer—if the employer fails to post a conspicuous notice that informs employees of their rights to inform their employer when difficult working conditions may cause them to resign. In this case, the employer is considered to have waived their right to receive written notice.

A constructive discharge claim will require specific facts detailing the difficult working conditions or outrageous employer conduct. If you have a constructive discharge claim, you may also have other claims based on discrimination or harassment. Consult with an employment attorney to determine which claims you have and what remedies are available to you under Arizona or federal law.

Chernoff Law handles business and employment law matters throughout Arizona. Contact us to discuss your case with an experienced business litigation attorney.

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