Board Certified
Best Law Firms
Super Lawyers
AVVO

Constructive Dischage

The Law Office of Rob Wiley, P.C., represents Texas employees who have been constructively discharged by their employer. Constructive discharge, also known as constructive dismissal, happens when an employer forces an employee to resign. In other words, even though the employee resigned, the separation was not voluntary.

What is the Law of Constructive Discharge in Texas?

In order for an employer to be held liable for a termination under most employment laws, the employer must "cause" the termination. A direct discharge is when an employer tells the employee that he or she is fired. By contrast, a constructive discharge occurs when, for all practical purposes, the employer caused the termination even though the employee may have technically resigned.

The most straightforward case of constructive discharge is where an employer confronts an employee with an ultimatum: resign or be fired. In this instance, there is no question that the employee was involuntarily terminated. Regardless of the employee's choice, the employee was going to be separated from work.

Constructive discharge, however, is not always this obvious. A common situation arises when a workplace becomes so hostile or intolerable that an employee cannot continue working. The legal test is that a "reasonable employee would have felt compelled to resign." There are a number of factors that a court may consider to decide whether a reasonable employee would feel compelled to resign. These include: (1) being demoted, (2) a reduction in salary, (3) a reduction in job responsibilities, (4) a reassignment to menial or degrading work, (5) a reassignment to work under a younger supervisor (for age discrimination claims), (6) harassment calculated to encourage resignation, or (7) offers of severance or early retirement. In interpreting these factors, a court will look to the degree to which an employee was affected. For instance, did the employee have a significant demotion, a large reduction in salary, or were they targeted by a serious level of harassment?

Constructive discharge is an important legal doctrine. It is the nature of discrimination that it is used as a tool to push people out of employment. A racist may racially harass someone with the intention that he or she will quit and leave. Constructive discharge is important because, although an employee who quits his or her position is usually prevented from filing a lawsuit, constructive discharge would allow the employee to argue that the true cause of the termination was their employer.

Unfortunately, Texas is a fairly hostile jurisdiction to constructive discharge claims. If you are considering resigning your job because of badgering, harassment, or humiliation, you should contact an employment lawyer prior to resigning your position.

Constructive Discharge in Unemployment Hearings


When making a claim for unemployment, the Texas Workforce Commission differentiates between an employee who quit and an employee who was fired. An employee who quit will not get unemployment benefits unless the employee can show good cause for quitting.

This is a very high standard, and unemployment benefits are usually denied to employees who quit. On the other hand, if an employee is fired, the employer has the burden of proving that the termination was for misconduct related to the work. Under this standard, it is more likely than not that an employee will receive unemployment benefits. For the purposes of unemployment, an employee who is constructively discharged should be considered as an employee who was terminated, not an employee who quit.

At various stages of the unemployment process, an employee will be asked, "Did you quit or were you fired?" In such a situation, the employee should be prepared to argue that the employer initiated the separation, that the termination was involuntary, and that the employee did not voluntarily quit.

If the employee fails to show that the employer initiated the termination, then the TWC will likely apply the standard for employees who quit their job, one that is hostile to receiving unemployment benefits.

Contact a Texas Constructive Discharge Lawyer

The Law Office of Rob Wiley, P.C., represents employees who are victims of constructive discharge. If you believe that you have experienced constructive discharge in your work place, or if you are considering resigning your position because of harassment, please contact us.
Client Reviews
★★★★★
I would recommend the Law Office of Rob WIley, P.C. to anybody needing assistance with employment rights. They did an incredible job of handling my case professionally and in a very resonable time frame. In my initial consultation with Rob Wiley I was given a very straight forward analysis of my claims after which Fadi Yousef was the attorney assigned to my case. Working with Fadi was the best. He showed care and a true concern for the direction and result of my lawsuit. Fadi was always available and was in constant communication with me throughout. I thank Fadi Yousef, Rob Wiley and his team for doing a phenomenal job, they were an absolute pleasure to work with. R.G.
★★★★★
Rasha, Eric and Rob did it again a Second time around! I'll admit, they are truly the BEST employment lawyers out here in the Metroplex! Not only they won a case against my previous employer, they also won my unemployment insurance (UI) case as well! It is such a relief and a huge burden off my shoulders about not worrying how I'm going to pay my bills now and provide food for my family. I can't say enough how awesome they are and how far they go to make sure you are taken well care of. Thank you so much Rasha, Eric and Rob for all that you did for me! J.T.
★★★★★
Rasha Zeyadeh and Rob Wiley provided a very professional and comfortable experience. My case was tough being in Texas, but, Rasha worked very closely with me to get the best result possible. She was extremely open to listening to my concerns and suggestions, while using her expertise to guide me to the best result in my case. I would definitely recommend Rasha and Rob Wiley if you are in need of their type of service. I will use them again if needed! K.G.