In California, constructive termination (also called constructive discharge or constructive dismissal) occurs when an employer intentionally creates or knowingly permits such intolerable working conditions that an employee reasonably feels no choice but to resign.
Wrongful constructive termination is constructive termination under circumstances that would give rise to a California wrongful termination claim if the employee were fired outright.1
So a wrongful constructive termination case – like an ordinary wrongful termination case – can be based on any of the exceptions to at-will employment that exist under California employment law.
Here are some examples of employees who might have a case against their employer under California’s wrongful constructive discharge law:
- A woman who works at a nursing home notices some health and safety violations at the home. She reports them to the state licensing agency, which fines the nursing home. After that incident, the woman keeps her job. But she is given consistently terrible work assignments by her supervisors, including lots of overnight shifts that endanger her health. The woman feels she has no choice but to resign.
- A man is hired as a tech support specialist without an employment contract. But after a year his boss makes an oral promise not to fire him without good cause. A couple of years after that, his boss becomes interested in hiring someone cheaper to do the job. So the boss begins to ostracize the man at work and sabotage his performance of his duties until the man resigns.
Below, our California labor and employment lawyers discuss the following topics in wrongful constructive termination law:
- 1. What does California law say about wrongful constructive discharge?
- 2. How is “constructive termination” defined?
- 3. What recourse do I have against my employer?
- 4. What is the deadline to bring a claim?
Victims of wrongful constructive termination may file a lawsuit.
1. What does California law say about wrongful constructive discharge?
The law of wrongful constructive termination (also known as wrongful constructive discharge) in California provides that you can sue an employer for wrongful termination even if you resigned rather than being fired.2
In order to bring a successful claim against your employer, you need to be able to show two things:
- Your employer, through acts of workplace retaliation, intentionally or knowingly created working conditions for you that were intolerable, so that you would have no choice but to resign;3 and
- Your employer did not have the right to fire you outright – and so if s/he had, you would have had a valid wrongful termination case against him/her.4
It is important to remember that California’s wrongful constructive discharge law only applies where both of these are true.
Most non-union employees in California are “at-will employees” – either
- under the express terms of their employment contract, or
- under the default rule of at-will employment that applies in California.5
At-will employees may be fired at any time, regardless of whether the employer has good cause to do so.
An at-will employee may also be “constructively terminated” at any time. That is, your employer may subject you to intolerable work conditions if s/he chooses as long as you are at will.
But if an exception to at-will employment applies to your case, then you may have a cause of action for wrongful constructive termination against your employer in this situation.
2. How is “constructive termination” defined?
Under California termination laws, a constructive dismissal occurs when an employer
- intentionally creates or knowingly permits,
- working conditions that are so intolerable or aggravated,
- that a reasonable employer would realize that a reasonable person in the employee’s position would have no choice but to resign.6
As you can see from the above definition of constructive termination, unpleasant working conditions are not enough to constitute a constructive discharge. Instead, the conditions must be so bad that a reasonable employee would feel compelled to resign.
Also, you will only have a successful wrongful constructive discharge case against your employer if you can show that the employer either
- intentionally created the intolerable conditions or
- actually knew about them and permitted them to continue.
If the employer was unaware of the conditions, s/he is not liable.
(Where the employer is a company, this means that officers, directors, managing agents or supervisory employees need to have intended or known about the conditions.)7
Example: Roy is a welder with a construction company. He is initially hired without a contract–but years of behavior and oral promises by his employer lead to an implied contract that he will keep his job absent good cause to fire him.
The owner of the construction company dies, and his son takes over the company. The son thinks Roy’s salary is too high and would like to replace him with a younger, cheaper employee. But he is not sure that he has the right to fire Roy, since he is aware of the promises by his father that gave rise to the implied employment contract.
So the new owner does everything he can to make Roy’s life at work miserable. This includes ostracizing him at work and denying him access to essential safety equipment so that Roy cannot do his job without jeopardizing his own physical safety. Roy feels he has no choice but to resign.
Roy probably has a case against his employer for wrongful constructive termination.
BUT
Example: Carla works at a clothing store. She witnesses several co-workers committing what is obviously national origin harassment against another employee who is from Mexico (and eventually quits due to the harassment).
Carla reports this harassment to a supervisor, and the offending co-workers are disciplined.
But Carla’s co-workers now hold a grudge against her. They subject her to brutal insults at work, humiliate her in front of customers, and conspire to take away opportunities for her to make sales, which affects her compensation. Carla decides to quit and look for a new job.
Carla’s co-workers’ behavior looks a lot like a case of wrongful constructive termination in violation of the Fair Employment and Housing Act. The problem is that this behavior came only from her co-workers–not her supervisors or the owners of the store.
Unless her supervisors knowingly permitted this behavior, Carla probably cannot sue successfully for wrongful constructive discharge.
Note that in the event of an emergency, employers are not allowed to take or threaten adverse action against employees for refusing to come or stay at work because they have a reasonable belief the work site is not safe.8
Unpleasant working conditions alone are insufficient to qualify as a constructive discharge.
2.1. What if I stay at my job and endure the intolerable working conditions?
You cannot bring a plausible lawsuit alleging constructive discharge if you did not actually resign from your job at some point.
That said, many plaintiffs in wrongful constructive termination cases did, in fact, stay on the job for a material amount of time after the intolerable conditions began. This fact, by itself, will not necessarily prevent you from showing that you were the victim of wrongful constructive termination.
California courts recognize that many people
- need their jobs to survive and
- can force themselves to tolerate “intolerable” working conditions for a shockingly long time.
Courts also recognize that it is often preferable for employees facing unfair behavior from their employers to
- try first to change their situation from within,
- rather than promptly resigning and suing.9
Thus, under California’s wrongful constructive termination law, you will not automatically disqualify yourself from a successful wrongful constructive discharge suit if you remain in your job for some period of time after the intolerable conditions begin.
That said, the longer you remained in your job after the difficult working conditions began, the harder it may be to show that the conditions were intolerable enough to amount to constructive termination.
3. What recourse do I have against my employer?
Intolerable working conditions are only half the equation in a California state law wrongful constructive termination suit. To successfully sue your former employer on these grounds, you also need to be able to show that your constructive discharge was “wrongful.”10
The major forms of wrongful termination in California include
- wrongful termination in violation of an implied contract,
- wrongful termination in violation of public policy,
- termination for whistleblower activities, and
- termination for exercising your rights under the Fair Employment and Housing Act (for example, by complaining about workplace harassment or discrimination).
Constructive termination for one of those reasons counts as a wrongful constructive termination.
But constructive termination of an at-will employee that is NOT for a reason such as those above is not considered “wrongful” constructive termination. In situations where your employer has the right to fire you, s/he also has the right to create working conditions that would lead a reasonable person to resign.
4. What is the deadline to bring a claim?
Wrongful constructive termination lawsuits in California need to be filed before the “statute of limitations” for that type of lawsuit has run out.
But the exact length of the statute of limitations for wrongful constructive discharge cases varies depending on what kind of wrongful termination case it is. The chart below sets out the deadlines for wrongful constructive discharge lawsuits on different bases:
| Type of Wrongful Constructive Termination Case | Statute of Limitations (generally) |
| Wrongful constructive termination in violation of an implied oral contract | Two (2) years11 |
| Wrongful constructive termination in violation of public policy | Two (2) years12 |
| Whistleblower wrongful constructive termination | Three (3) years13 |
| Wrongful constructive termination in violation of Fair Employment and Housing Act | Three (3) years (to file a complaint with California Dep’t of Fair Employment and Housing)14 |
In a wrongful constructive termination case, the statute of limitations clock begins to run
- on the date when the employee resigns in response to intolerable working conditions
- rather than on the date when the intolerable working conditions begin.15
For additional help…
For legal advice about California constructive wrongful termination / constructive wrongful discharge laws or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact our employment lawyers at Shouse Law Group.
Our law firm has local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. We create attorney-client relationships throughout the state.
Informative links
- California Unemployment Benefits
- Equal Employment Opportunity Commission
- Title VII – Civil Rights Act
- U.S. Supreme Court
- United States Constitution
Legal References:
- Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252. (“Thus, a constructive discharge may, in particular circumstances, amount to breach of an employer’s express or implied agreement not to terminate except in accordance with specified procedures or without good cause. . . . Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094–1095, [hereafter Gantt ].) An actual or constructive discharge in violation of fundamental public policy gives rise to a tort action in favor of the terminated employee. (Foley, supra, 47 Cal.3d at pp. 665–671, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178, [hereafter Tameny].)”; also see Green v. Brennan (2016) 542 U.S. 129.
- Same, at 1244. (“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.”)
- Same, at 1251. (“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”)
- Same, at 1251. (“Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.”)
- Labor Code 2922 — Termination at will upon notice; employment for a specified term [general rule of at-will employment].
- See endnote 3, above; see our article on hostile work environments.
- Turner v. Anheuser-Busch, Inc., supra at 1251. (“For purposes of this standard, the requisite knowledge or intent [for constructive termination/constructive discharge] must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.”)
- Senate Bill 1044 (2022); California Labor Code 1139.
- Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1058. (“The length of time the plaintiff remained on the job is relevant in determining the severity of the impact of the working conditions but does not as a matter of law prevent the plaintiff from proceeding with a claim for wrongful discharge. Some employees may stay on the job and endure very difficult circumstances that might have caused others similarly situated to quit sooner. Financial circumstances may not allow the employee the luxury of resigning before finding other employment. But the fact that for a time circumstances prevented the employee from resigning certainly does not decrease the burden the employer has placed on him.”)
- See endnote 4, above.
- Code of Civil Procedure 339 — Two years; oral contract; certificate, abstract or guaranty of title; title insurance policy; sheriff; coroner; rescission of oral contract. (“Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing [such as an implied oral contract in a wrongful constructive termination case], except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; . . . .”)
- Code of Civil Procedure 335.1 — Two years; actions for assault, battery, or injury to, or for death of, individual caused by wrongful act or neglect [applies to wrongful termination or wrongful constructive termination]. (“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”)
- Minor v. Fedex Office & Print Services, Inc. (N.D. Cal. 2016) 182 F.Supp.3d 966, 988. (“California’s statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture” is three years. See Cal. Civ. Proc. Code § 338(a). Therefore, actions commenced under § 1102.5 [whistleblower termination or constructive termination law] must be brought within three years.”)
- Government Code 12960 — Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations [wrongful termination based on wrongful constructive discharge for harassment/discrimination complaints]. (“(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .”); California Assembly Bill 9 (2019).
- Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 743. (“Because (1) constructive discharge is an employer-directed termination of employment, (2) termination normally is the breach alleged, and (3) the employee may elect to overlook earlier adverse actions of the employer in the hope of conciliation, we conclude that the statute of limitations does not begin to run until actual termination. An employee is not barred from bringing his or her claim on the basis of the statute of limitations as long as the claim is brought in a timely manner after the actual termination of employment.”)