Discrimination on the Job Article

Constructive Discharge

Constructive discharge” occurs when an employer makes working conditions so difficult, unpleasant, or outrageous that an employee is forced to quit.  Arizona law prohibits employers from constructively discharging employees.  A.R.S. § 23-1502.

In some cases, the employee must tell the employer about the difficult, unpleasant, or outrageous work conditions and give the employer a chance to correct those conditions.

Ending the Employment Relationship

In Arizona, employment is “at-will.”  A.R.S. § 23-1501. At-will employment means that the employer can fire the employee at any time or the employee can quit at any time.  There are some exceptions to this general rule.  For example, an employer cannot fire an employee if another law prevents firing an employee for a specific reason, such as firing someone because of their race or because the employee was called to jury duty or if there is a written employment contract.

While the employer can fire the employee at any time, the constructive discharge law prevents an employee from making working conditions so difficult, unpleasant or outrageous that an employee has to resign.  Forcing an employee to continually work in extreme heat or cold or continually being treated rudely and disrespectfully by others could be working conditions so difficult, unpleasant, or outrageous that an employee has to resign.

The constructive discharge law does not prevent the employer from disciplining or firing employees for unsatisfactory work or assigning hard work to employees if the hard work is what is needed to run the business.

Employee Notice to Employers – Difficult or Unpleasant Work Conditions

An employee must inform the employer in writing about difficult or unpleasant work conditions if the employee feels the work conditions are difficult or unpleasant to the point that a reasonable employee would feel compelled to resign. A.R.S. § 23-1502 (B)(1). Verbal notification to the employer is not enough: the complaint must be in writing.  The law does not give any examples of difficult or unpleasant work conditions. The employer has up to fifteen days to respond in writing to the employee. A.R.S. § 23-1502 (B)(2).

If the employee reasonably believes that she cannot continue to work while waiting for the employer’s response, the employee can take leave up to fifteen calendar days or until the time the employer responds in writing to the employee's notice, whichever occurs first.  If the employee has paid leave, the employee can choose to use this paid leave during the time off. A.R.S. § 23-1502 (C).

The employer must inform employees of this constructive discharge law by posting a notice about this law.  Employers can post this notice where notices to employees are customarily posted or in the employment handbook or policy manual that is distributed to employees.  A.R.S. § 23-1502 (E)(1).

If the employer does not post this notice, the employee is not required to inform the employer of the difficult or unpleasant work conditions prior to resigning. A.R.S. § 23-1502 (E).

No Employee Notice for Outrageous Conduct
An employee that feels the work conditions are outrageous to the point that a reasonable employee would be forced to resign does not need to provide notice to the employer.  The law gives examples of outrageous conduct: sexual assault, threats of violence directed at the employee, a continuous pattern of discriminatory harassment by the employer or by a managing agent of the employer. A.R.S. § 23-1502 (F).

What To Do
If you believe you are the victim of a constructive discharge, review your employer’s constructive discharge policy to determine who you should speak to and arrange a meeting with that person.  Prior to the meeting, put your complaint in writing and give your employer a copy of the complaint.  In your written complaint, give the employer as many specific facts as you have. Listen to the employer’s explanation.

If, after speaking with your employer, you still think you are being, or have been, constructively discharged, you should contact a private employment law attorney and discuss the facts with the attorney.

Legal Correspondent: Dave Smith     August 25, 2016



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