E8: Constructive Discharge

In this episode, host Thom Jennings and attorney Kathleen Jennings discuss constructive discharge and how to handle potential lawsuits brought about by employees who believe they have been forced to quit their jobs because of a hostile work environment.

In this spirited episode, Kathleen discusses a constructive discharge case that involved a porta-potty supplied by an employer to an employee, and Thom shares a personal experience involving a not-for-profit.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law in her popular Cover, your Assets Blog, if your business has employees you cannot afford Not to have your assets covered.

Thom Jennings (00:34):
Hello everyone and welcome to the latest episode to Cover Your Assets, the Labor and Employment Law Podcast. And before we begin, of course we want to thank everybody for tuning in, for listening for sharing. As of now, you know, I don't think that I've shared this fact with our resident expert, Kathleen Jennings, but I'm gonna give you, we're gonna start out with a, with a quick little trivia question. Which of our episodes from the archives do you think has had the most listens? Which of the episodes? Go ahead.

Kathleen Jennings (01:08):
I'm gonna guess the same sex sexual harassment.

Thom Jennings (01:12):
That would be number two.

Kathleen Jennings (01:15):
Oh, yes, that was number one for a while. So I'm number one, wondering if it is the Workplace Romance episode that featured quite prominently the Sex Police.

Thom Jennings (01:27):
The Sex Police is, which should have been our number one episode, but no, it's not.

Kathleen Jennings (01:34):
Well then I'm, I'm stumped, Thom. Tell me it

Thom Jennings (01:37):
Is restrictive covenants.

Kathleen Jennings (01:38):
Really? Yes.

Thom Jennings (01:40):
So

Kathleen Jennings (01:40):
That is

Thom Jennings (01:41):
Interesting. Yeah. So maybe it's a topic that is has not been broached, is that the proper terminology? Very often in podcasts, but nonetheless, that is our number one. But the point being is that you should go back, listen to our archives because they are all, they're all great episodes and you'll find a lot of,

Kathleen Jennings (01:58):
And we're not biased at all. Are we?

Thom Jennings (02:00):
Not at Tad not a dad.

Kathleen Jennings (02:02):
Not at all. No. We have, you know what I, I have to say, Thom, I have truly enjoyed doing these episodes with you, making these episodes. So if our audience enjoys listening to the episodes half as much as we have enjoyed making them, then they will have a good listen.

Thom Jennings (02:20):
Now that of course Kathleen, for those who are tuning in for the first time, I'm Thom Jennings. It's my sister Kathleen Jennings. And that sounds like something our mother, Elizabeth Jennings would've always said if they enjoyed half as much. Yes, that was, that was very much you, you channeled our mom in that statement. It was beautiful though. It was touching. Well

Kathleen Jennings (02:40):
You know, what can I say? She raised me. She raised you. Look how we turned out. We'll leave it at that.

Thom Jennings (02:47):
And two minutes in. Let's, let's, let's introduce the topic. The topic is constructive discharge. Now the, the, the term constructive discharge, I'm gonna be gonna be honest with you, the first time that I ever heard it was about an hour ago when we were doing a little bit of our pre-show powwow. And it, it's, but it, even though it's not a term that I've heard of, I've certainly experienced it. And I think it's something that almost anybody that's ever had a job and a place with more than a handful of employees has witnessed something like that happening. So, constructive discharge, this is a, this is a legal term, correct?

Kathleen Jennings (03:27):
It is a legal term sort of a term of art. And it's defined as a constructive discharge is when a worker's resignation or retirement may be found not to be voluntary because the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion, which forced the employee to quit or resign. And I guess what it is, is, you could call it almost a cowardly way for an employer to terminate an employee without doing it directly. It's, it's basically indirect termination when a resignation or retirement is found to be a constructive termination. And,

Thom Jennings (04:17):
You know, use the term cowardly, but let's, let's, let's be honest, it's difficult to terminate an employee, I mean, in any situation, unless it's very cut and dried like theft or violence or drug use, you know, things like that. So, but yes, I, I, I mean obviously as an employer you have to be very cognizant of like we discussed in a previous issue, dealing with terminations in a very respectful way. So, but we've all heard of that, those situations where it's like, oh, you know, why don't we just get employee X to quit? Cuz they're, they're driving everybody crazy. And it almost seems like to me, in many cases where a company tries to get an employee to quit, it's not because of one particular episode or incident, it's more or less just, maybe they just, that they just don't like that employee. Or again, this could go to retaliation. I mean, there's so many circumstances that come up, but to me it seems like the most common one would be, we just don't like this person. We want to get 'em out and we don't really have a reason to fire 'em. So let's just make things unbearable so that they'll quit it.

Kathleen Jennings (05:21):
That's probably a, a, a good summation of, of why an employer would go through this process. I would not recommend it as a way to have an employee leave your employment if you don't have a good reason to terminate someone than doing it in a way that if you do it wrong, appears to be dishonest, is only going to draw a lawsuit. And in that lawsuit you have to think about how's the company gonna look? This is a company that is purposefully making an environment a work environment, difficult or intolerable. And that's gonna be a hard case to defend. So whenever employers do things that are not direct or honest, then you start seeing lawsuits, charges, you may have a jury trial and think about how that's gonna look. So if you have a problem employee that you want to leave your employment there's probably, yes, it's difficult to terminate folks, especially in states. You know, here in Georgia we have pretty much pure at-will employment. You know, you can terminate an employee anytime for any reason or no reason at all up there in New York at-will employment is not quite so pure. And then you have situations where people are in protected classes. So federal law would apply if you have a unionized work environment, then you have to work within the parameters of the collective bargaining agreement. So yes, it is difficult in many cases to simply just let someone go.

Thom Jennings (07:13):
Yeah, and I mean, I, I've heard of scenarios and maybe witness scenarios in different places where I've worked at where they've just, where supervisors have said, you know, well, we just need to start writing 'em up. We just need to start writing 'em up. So they're gonna start looking for things to write the employee up. And where I imagine you could start getting into trouble for that is, let's say it's we'll come up with so lateness, so habitual lateness and you start writing the employee up for being habitually late, but yet there's seven or eight other employees that are habitually late. Is are those situations where you could really start seeing yourself getting into to trouble in terms of if there's a court case or anything up the road?

Kathleen Jennings (07:49):
Absolutely. Because if you, if you change the way that you treat an employee or if you treat an employee differently, then you treat other employees. If you're not writing up everybody else in the department for being late or not giving them a hard time for being late, but you have singled out one particular employee for being late then you could run into problems. Now if it's simply just singling out, is that discrimination? It really depends on how, you know, if they are in a protected classification or maybe they've complained about something. In a lot of cases you'll see constructive discharge being alleged along with something like retaliation because someone will claim after I made a complaint or I became a whistleblower after that, my employer started treating me poorly to try to get rid of me because they know, or a smart employer knows, it's, you shouldn't dismiss someone for making a protected complaint. But by doing it indirectly, by making the work environment intolerable, that doesn't really help matters. I think it just makes it worse.

Thom Jennings (09:09):
Yeah, I just, in fact, I was just talking with somebody this past Tuesday and had worked with, I know every episode we usually share a personal story of, of situations that pertain to the particular topic, which I'll be discussing later, you will as well. But this young lady was telling me she'd worked at the same organization where I'd had the the, the same situation in terms of the, you know, trying to get me to quit scenario and the constructive discharge. And she, what she had told me is that she had reported the it was a not-for-profit agency to the state. And that, that's the justice center is is where you report if you think there's abuse to a particular client, you know, if you're working with different types of individuals, and I'll try to use as little information as possible cause I don't necessarily want the organization to be identified.

Thom Jennings (09:57):
But she had done this report it had after that they stopped scheduling her regular shifts. So the way that they got her to quit wasn't necessarily by writing them up. What they did was they just weren't putting her on the schedule enough where she could justify working there anymore. So in that case, she just quit, you know, nothing really became of it. I don't know, I Oh, she did tell me she wound up getting unemployment out of the, the situation after it was all said and done. But is that a fairly common form where you'd start saying, oh, you know, maybe you take away the overtime or you start taking away the actual shifts? I mean, can that, is that something that can be proven in terms of a form of constructive discharge in a, in a court setting?

Kathleen Jennings (10:43):
Absolutely. Any a a anytime you change the work environment, that's a way that negatively impacts on that employee, especially after, again, they've engaged in some sort of protected activity that could be con if the, if the employee resigns, that could be construed as a constructive discharge. I had defended a case involving an employee who, she was a, a poor performer. She was in attendance trouble. She was on the brink of being terminated, and then she complained about sexual harassment in the workplace by her supervisor, and she had the, the recordings to back it up. Now this was, you know, when we talk about sexual harassment, when you have the work environment where people are telling the dirty jokes or using the colorful language and nobody complains about it, that can be used against you at a later time by that employee who wants to protect herself from being terminated.

Kathleen Jennings (11:49):
And that's what this woman did. And then she also had a lot of, of health issues that required her to take a lot of time off to be very close to a bathroom. She wasn't getting her job done because she wasn't there long. She just was never at work. But the employer was concerned about simply letting her go because she'd made that complaint. So they changed her to a different job in a different location of the facility and gave her her own dedicated porta-potty so she could be close to a restroom facility. Well, she was not happy about the porta potty. She wanted indoor plumbing and she ended up quitting and then claiming discrimination, retaliation and constructive discharge. So that's, that's a real situation.

Thom Jennings (12:48):
Wow. I, yeah, I almost wonder if that would go into the, the, like a medical issue, a HIPAA issue, because I mean, if you're putting somebody near a bathroom and everybody gets wind of it, I mean, they must know that well that was a, an unintentional one, get wind of it. But if you're putting somebody near a bathroom, doesn't it almost make it known to everyone that there's some sort of health issue related to the fact that this employee has to go to the bathroom? Would that be another issue that could kind of get layered onto this whole scenario?

Kathleen Jennings (13:20):
A lot of people apply HIPAA to entities that are not considered covered entities under hipaa. And so this would not be a HIPAA violation. It was, it certainly a situation covered by the Americans with Disabilities Act because she had a, a condition that rose to the level of a disability and this was a way for the employer to try to accommodate that issue. Basically they created a job for her that was outside and not close enough to a restroom that they felt it important enough to actually purchase this or rent probably the porta-potty solely for her. But not everybody loves the porta-potty. I can tell you that having done multiple bicycle rides across Georgia, I have no problem with a clean porta-potty when I need it.

Thom Jennings (14:23):
Yeah, I, my my wife will never use a porta-potty ever.

Kathleen Jennings (14:28):
You know, if the, if the choice is between a clean porta-potty and a sketchy looking restroom in a janky convenience store, I'm going with the clean Porta potting. I'm just putting that out there.

Thom Jennings (14:46):
And of course, this is not related to the topic. I mean, it's constructive and it's dealing with discharge, but it's not constructive in terms of what we're talking about. So let's, let's bring it back. What

Kathleen Jennings (14:58):
Do you think? Okay, let's do that. Sure.

Thom Jennings (15:00):
<Laugh> cover your assets, the podcast where we take some weird bunny trails, but that's okay cuz that's what makes it entertaining. So let's go back to the situation Porta Potty. And what really, what came to mind when you started discussing the whole scenario with this particular employee is that in many cases it feels like, you know, and, and I've seen this witnessed it, maybe experienced it to a certain degree, that when you are getting to a situation with an employee where you, you, they, they, they kind of gotta go for whatever reason. It's just not working out. They've created toxic work environment, you know, the whole nine yards that now it becomes a bit of a chess game. And I think employers would probably need to be very cognizant of that. You know, so you mentioned, for example, here's an employer. They're, they're starting to kind of do some things and showing the, the employers showing their hands, say, Hey man, we're trying to get rid of this employee, and then the employee becomes aware of it, so they're gonna start recording conversations. So what's your recommendation again at that really to, to be proactive in terms of understanding that once the process begins, that it could really become an ugly interaction between HR management and the employee and knowing of course, that the employee is probably gonna start telling every other employee in the place that listens what a horrible thing is happening to them at that particular time.

Kathleen Jennings (16:27):
I think in this situation, that's where you want HR to try to do as much damage control as possible. This, and I will say in this situation involving the woman in the porta potty, the employer was really not trying to get rid of her. They actually created this job specifically for her so she could stay on and keep her health insurance, but her perception of the situation was completely different. So it may be an issue of communication between the employee and the supervisor, between HR and the employee so that everybody's on the same page that, no, we're not trying to get rid of you, but we do need somebody in your job who will get the duties done and you are not doing it because you are not here.

Thom Jennings (17:23):
And of course, she was able to get her duties done because she had a porta-potty. I couldn't resist it was there,

Kathleen Jennings (17:29):
There you go, off on another rabbit trail.

Thom Jennings (17:33):
<Laugh>,

Kathleen Jennings (17:34):
There you go again, Thom.

Thom Jennings (17:37):
Well, I, I, I think, and again, one of the things that you mentioned in that perception, you know, perception is reality. I mean, it's an old adage, but it, it, it holds a lot of truth to it. If an employee perceives that for whatever reason that they are being pushed out and that kind of stuff. I mean, that to me, that just can create a whole bunch of layers of craziness in the workplace. So and, and, and I wonder too, you know, in, in terms of coworkers, things like that, I mean, if they, would you entertain anything from a coworker maybe comes in and says, oh, you know, Joe, is Joe's telling me all this stuff that's going on in terms of employee discipline? And actually, let me flip that back a little bit because this is a scenario that actually happened at a place that I worked at.

Thom Jennings (18:23):
The HR person really probably should make sure that they're not telling everybody on site that this employee is going through any kind of discipline process or anything, or that they're trying to get rid of the employee. I mean, I worked at a place where the HR person really just loved to run her mouth, and if there was an employee that was written up or there was somebody that they were trying to drive out, I mean, she would tell anybody that would listen. And I just remember at the time thinking, man, this is just a, a lawsuit waiting to happen.

Kathleen Jennings (18:56):
It's a lawsuit waiting to happen. And it's certainly not the way that a good professional HR person would conduct themselves. A good professional HR person is not going to disclose any specific employee situation to coworkers without a really good reason. But no, that's, that kind of of behavior is, is not constructive. It's not good for employee morale and it's just, it's just not cool.

Thom Jennings (19:31):
And I, I think an underscore is the importance of really having a good HR person. I mean, as a, as a business owner or somebody that's in management or anybody that oversees hr, that position is, I mean, as much as you worry about employees being the ones that are the problems in terms of potential lawsuits and everything, it really does come down to having a very solid person, super professional, not gossipy or or overly chatty in your HR position.

Kathleen Jennings (20:02):
Absolutely. A good HR person should be familiar with the laws of your state, your jurisdiction. If they don't know something, they know who they can get in touch with. They probably review regular updates on HR issues and HR laws. Basically, if we wanna wrap this thing up, Thom, a good HR person is, is critical to covering your assets,

Thom Jennings (20:33):
Right? And they're listening to podcasts like this to get to get great, to get great advice and information, which is a combination. We, we offer a combination of both and occasionally some storytelling from the archives of your brother. And with that, I will ask you to throw me a softball.

Kathleen Jennings (20:52):
Thom, have you ever had a situation where you felt like you were a victim of constructive discharge?

Thom Jennings (20:58):
Well, it's interesting that you asked me that. And actually I touched on it earlier with the fact that I had discussed it with another person when I, I at the, an employer that I dealt with constructive discharge from. And so I'll recap a little of that. I was working at a not-for-profit agency, and what had happened was there was a situation where I had discovered some documentation that was being altered. In fact, they had they had asked a whole core group of us to alter some documents that were being submitted for medical billing and they had been filled out improperly. So we were brought into a room, we were handed a whole series of different colored pens and we'd have to draw on the paper to make sure that the ink matched up with the original notes, and then we'd have to amend the notes that they were able to properly bill.

Thom Jennings (21:51):
And it, the whole thing seemed very sketchy and it was very scary. Now, we had recently had a presentation by the agency's compliance officer who said, Hey, if you see anything that's, that's not above board, please by all means get the information to me. I am above the company, I don't, I don't have to to to answer to them. I'm just here to make sure that, that everybody's complying with the law. And so in turn, what I did was I I turned over clear evidence, of course did not keep a copy for myself because I was a complete moron. And said here, you know, this is the stuff that we did. This is the stuff that we amended. This was the date, the, these are the people that were there. And the compliance officer said, this is wonderful information. You have done your civic duty for this organization. You have saved us. Of course, you know, adding some stuff on. And lo and

Kathleen Jennings (22:48):
Behold, probably saved yourself from going to prison or something too.

Thom Jennings (22:51):
Well, yeah, I mean if, if nothing else, I mean, I, I felt I felt a moral obligation because it just, it was, you know, we're deal, we were dealing with, with medical billing. I mean there's, that's, that's fraud. And not that I don't,

Kathleen Jennings (23:04):
And an orange jumpsuit would not be flattering on your figure, but

Thom Jennings (23:08):
I think stripes would, I think up and down stripes, especially being that I'm a little overweight, they would, they would thin me

Kathleen Jennings (23:14):
Vertical stripes always do that. Yes, yes. And make you look taller. Yes. And make look tall. Anyway, go on with your story.

Thom Jennings (23:19):
So I was, I, I, again, I thought I'd done the right thing and in many ways I was trying to cover my assets and, and, and that I didn't want to go to jail for any of this kind of stuff because, you know, if a lot of situations you'll see where there's fraud in an organization, it's usually not the big guys that go down. It's the little guys that go down because we were the ones that had the pens. Nevertheless at that point they had a thing, thing that was called administrative leave and it was paid. So, you know, you'd go to work one day and they would just tell you, oh, you know, you're on administrative leave because there was an accusation against you. You can't talk to any of your coworkers and you'll be out for a short period of time and we'll call you when the investigator wants to talk to you and then you come back to work.

Thom Jennings (24:02):
And so those started happening on a more frequent basis over the next, you know, three to four weeks. And so I found, even though I was still getting paid, I mean I was getting sent outta work and, and it was situations where there was one of 'em where I was outta work for almost a week and the incident that I was accused of happened on a day that I had taken a vacation day. So it wasn't even like there was any of these, these situations that were valid in any way, shape, or form. So one morning I came into work and they called me into the office and they said you know, you were supposed to drive some clients around today, but you're not allowed to take the, the company vehicle because a coworker reported that you have alcohol on your breath, <laugh>. I'm like, alcohol on my breath.

Thom Jennings (24:43):
I'm like, I don't know about alcohol on my breath. I said, if you want, I'll go right to the hospital up the road and have my blood drawn to prove that there is zero alcohol in my system. I said, and this, I said, I've had three administrative leaves over the last month. And I, I said, I think I know what's going on, but this nonsense needs to stop. And she's like, well, there's nothing I can do. I mean the hospital thing, I I, I don't know what to tell you. So I quit. And really the only thing that that came out of it, I was able to get unemployment cuz they did determine, because of all the administrative leaves and all that kind of stuff, that it was, I guess the terms you, you used the constructive discharge. But I, and I wasn't, I wasn't up for dealing with a lawsuit or any of that kind of stuff. But that particular agency sort of has a reputation for that kind of thing going on, you know, in terms of a lot of those administrative leaves and cutting hours and things like that if anybody complains. So I dunno, they're still in business, so I showed them

Kathleen Jennings (25:44):
You sure did. You sure did. I'm proud of you bro. <Laugh>,

Thom Jennings (25:50):
But that is my story. I don't know if there's a moral to it. As I said, I did wind up getting the unemployment, so I'm assuming the agency, cause I know in New York state, and I don't know how it is in other states, the the employer is responsible for paying a significant portion of the unemployment. And I did my level best to stay on unemployment till the absolute last week that I possibly could to make sure that that agency, I was like, I'll make them pay.

Kathleen Jennings (26:18):
Wow. <laugh> I think the moral of the story is that, you know, here's an employee who was trying to do the right thing and he was punished for it. I would think that that kind of information would get around and probably discourage other potential good employees from wanting to work there.

Thom Jennings (26:41):
True, yes. What we, the, the, I will hold on to that. I mean, granted this happened, man, it's gotta be 18, 19 years ago. So don't look at my resume, try to figure out where it was. But actually I never put, I never put that place on my resume for that particular reason. But I don't, you only have to go back 10 years on your resume. What is that? That's a whole nother episode that maybe we should do.

Kathleen Jennings (27:02):
That's, you know, different places go back certain amounts of time on your employment history. The important thing is to not lie about it.

Thom Jennings (27:13):
Well, very good. Anyhow as always a great episode. Certainly I hope that people got something out of it. Don't forget to check out the archives. We have lots of other great topics that we've covered and if you have anything that you want us to discuss, what's your contact information there assists.

Kathleen Jennings (27:31):
My contact information is my email, w or k j j at Wim law, w i m l a w.com.

Thom Jennings (27:41):
And what kind of services does your law firm offer to employers?

Kathleen Jennings (27:49):
Our law firm represents employers in all types of labor and employment matters.

Thom Jennings (27:55):
And of course, the attorney that you want to contact at that law firm is indeed Kathleen Jennings. And how about a few takeaways before we say goodbye?

Kathleen Jennings (28:06):
Don't try to do something indirectly that you can't do directly.

Thom Jennings (28:12):
Okay. And of course if an employee needs a porta potty, don't give many crap about it. Just give it to 'em. All right. We got, we officially gotta laugh on microphone from my normally stoic sister <laugh>. And with that, I will thank you for listening to Cover Your Assets, the Labor Law, employment, and Porta Potty Podcast. We'll see you next week.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.