Is it time to quit your job due to employer misconduct?

Clients often contact an employment lawyer because they have been wrongly terminated. However, sometimes they are still working for the same employer who has wronged them, and they wonder if they should keep working their or should quit, and they wonder how that might affect any lawsuit they pursue.

We often include a wrongful termination claim in any case where an employee who has suffered discrimination, harassment, retaliation or other misconduct has ultimately been terminated. When an employee voluntarily quits a job, that employee cannot sue for wrongful termination. However, if an employee quits a job because the employer's wrongful conduct has made the job intolerable, then that is not viewed as "voluntary" and it is treated as a form of termination called "constructive discharge." In such cases, we can assert a claim for wrongful constructive discharge against the employer after the employee has quit.

To succeed on a constructive discharge claim, you generally need to prove you put the employer on notice of the wrongful conduct that was making the job intolerable, and you therefore gave the employer the opportunity to fix the problem, but the employer did not do so.

Whether to quit a job due to workplace misconduct is a complicated decision, and it rests on various factors that are not legal in nature. We consult with our clients in this situation to try to determine when it makes sense to quit. Generally, we feel that it is best to quit when the workplace misconduct is truly intolerable, and only after putting the employer on notice and giving the employer a chance to fix the problem. Occasionally, there maybe exceptions, so this is not "one size fits all" advice.