Disputes over whether an employee quit or was fired are not uncommon. If an employee truly resigns of his own volition, the employee cannot sue for wrongful termination. However, an employer cannot get around the law by creating intolerable working conditions designed to force an employee to quit—a scenario known as a constructive discharge. If, under the circumstances, a reasonable person would have felt compelled to quit, courts will construe the resignation as a termination and a claim for wrongful termination can still be brought.

A resignation that occurs when an employee is presented with the stark option of resigning or being immediately terminated can constitute a constructive discharge. Courts consider in these cases whether the employee was given any alternative to resignation, was allowed a reasonable amount of time in which to make a choice, and was permitted to select the effective date of the resignation. Constructive discharge is not a wrongful discharge claim in itself. Instead, a finding that an employee was constructively discharged allows that employee to bring any legal claims that would be available had she been formally terminated.

The nature of constructive discharges, and the incredible lengths to which employers sometimes go to drive employees out, also lends itself to other legal claims. One strong possibility is harassment; another is infliction of emotional distress. Clearly, employers should not attempt to avoid terminations by creating intolerable conditions designed to force employees to quit. Nor should employers attempt to obtain resignations when terminations are already impending. Attempting to force employees out might give rise to additional claims of harassment or infliction of emotional distress.

Terminations can be challenged on constitutional, statutory, and common law grounds. Common law grounds include both contractual and tort claims. It is important to keep this “menu” in mind when analyzing the legality of a termination.

Some protections are available only to publicsector employees, unionized employees, and other employees not employed at will. What remains is considerable, although the various protections overlap and states vary in terms of whether and how particular legal protections are recognized. To simplify matters greatly, the exceptions to employment at will for most privatesector, nonunion employees boil down to the following impermissible grounds for termination: Terminations that would breach an implied contract, terminations that interfere with the exercise of statutory rights, and terminations that are discriminatory.