Constructive Discharge in Violation of Public Policy: A Guide for California Business Owners
Introduction
California business owners must recognize that employees cannot be compelled to resign rather than commit unlawful or unethical acts. When an employer’s requirement to violate public policy is so intolerable that a reasonable person would feel forced to quit, the law treats the resignation as a “constructive discharge”—a termination in the eyes of the law (Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1244–45 (Cal. 1994)).
Elements of a Constructive Discharge Claim
To prevail on a claim for constructive discharge in violation of public policy, an employee must demonstrate:
That an employment relationship existed.
That the employer required the employee to commit an act violating public policy or the law (Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 178 (Cal. 1980)).
That this requirement was so intolerable that a reasonable person in the employee’s position would have had no reasonable alternative but to resign (Turner, 7 Cal.4th at 1248).
That the employee resigned because of the requirement.
That the employee suffered harm.
That the employer’s requirement was a substantial factor in causing the employee’s harm (CACI No. 2431; see Turner, 7 Cal.4th at 1248; Tameny, 27 Cal.3d at 170, 178).
The Legal Standard for Intolerability
The standard is objective, not subjective—the focus is on whether working conditions were so egregious and extraordinary that a competent, reasonable employee would feel compelled to quit (Turner, 7 Cal.4th at 1246, 1248; Simers v. Los Angeles Times Communications, LLC, 18 Cal.App.5th 1248, 1272 (Cal. Ct. App. 2018)). Even a single demand by an employer to commit a crime can meet this test (Turner, 7 Cal.4th at 1247 n.3).
Public Policy Protections
A successful claim requires that the relevant public policy be:
Backed by statutes, regulations, or constitutional provisions,
Clearly articulated at the time of the resignation,
Beneficial to the broader public, and
Fundamental and substantial
(Stevenson v. Superior Court, 16 Cal.4th 880, 889–90 (Cal. 1997); Gantt v. Sentry Insurance, 1 Cal.4th 1083, 1090–91 (Cal. 1992), overruled on other grounds by Green v. Ralee Engineering Co., 19 Cal.4th 66, 80 n.6 (Cal. 1998); D’sa v. Playhut, Inc., 85 Cal.App.4th 927, 933 (Cal. Ct. App. 2000)).
Action Steps for Business Owners
Never demand or pressure employees to commit illegal or unethical acts. Train supervisors to recognize and avoid violations of law or public policy.
Review and reinforce company policies to prohibit retaliation against employees who refuse unlawful directions.
Take all complaints about unethical or illegal instructions seriously, investigate promptly, and document your findings.
Consult employment counsel (e.g. myself) if faced with employee resignations or complaints involving demands for unlawful conduct.
Create a workplace culture where employees can speak up without fear of reprisal or wrongful termination.
Citations:
Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1244–48 (Cal. 1994); Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 170, 178 (Cal. 1980); Stevenson v. Superior Court, 16 Cal.4th 880, 889–90 (Cal. 1997); Gantt v. Sentry Insurance, 1 Cal.4th 1083, 1090–91 (Cal. 1992), overruled on other grounds by Green v. Ralee Engineering Co., 19 Cal.4th 66, 80 n.6 (Cal. 1998); D’sa v. Playhut, Inc., 85 Cal.App.4th 927, 933 (Cal. Ct. App. 2000); Simers v. Los Angeles Times Communications, LLC, 18 Cal.App.5th 1248, 1272 (Cal. Ct. App. 2018); CACI No. 2431.
