Joel Dillard & Associates

Representing Working People

Leaving work the right way

Leaving work is never easy, but for employees that have potential legal claims, it can also be a trap for the unwary.

If you resign, for example, this means you weren't terminated, and that can have a number of consequences for legal claims. It is not easy to argue that you were wrongfully terminated if the decision to leave work is one that you made on your own. It isn't impossible, but it makes the case significantly more complex and difficult than a true termination case.

For example, suppose a boss said something offensive and the employee responded well I'll see you in court and walked off the job. This may have just ruined the case. First, you can bet the boss will deny what he said, and with nothing in writing it can be hard to prove him a liar. Second, he didn't fire the employee, and by walking off the employee risks (at least) the lion's share of any potential back pay. The employee may have benefited from getting advice from an attorney before quitting.

To be clear, quiting isn't always fatal to a case. Sometimes the Courts will treat a resignation as if it were a termination under the doctrine of constructive discharge. There are two ways to prove a constructive discharge: (1) either the employee was given an ultimatum to resign or get fired, or (2), the employee was in working conditions so terrible that any reasonable person would feel compelled to resign.

The ultimatum-type case is simple to prove, so long as the employee has some kind of email, text message, or other written proof of the ultimatum.

The working-conditions-type case, however, is always difficult. Usually, some demotion or extraordinary harassment must take place.

Courts weigh the following factors to determine constructive discharge: (1) demotion; (2) reduction in salary; (3) reduction in job responsibility; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir.2011).

For example, in one case, the City of Meridian wanted to get rid of a chemist working at the water treatment plant. Their attorney told them they didn't have sufficient grounds to fire her. And so, instead, they reclassified her as a laboratory technician and drastically cut her pay to try to force her out. She resigned. The Court held that this was a constructive discharge. Loftin-Boggs v. City of Meridian, Miss., 633 F. Supp. 1323, 1327 (S.D. Miss. 1986). (The employee still lost the case, though.)

On the other hand, with only harassment to go on, these cases are usually losers. E.g., Simpson v. Alcorn State Univ., 27 F. Supp. 3d 711 (S.D. Miss. 2014). Sometimes, though, in just the right circumstances, a harassment-based constructive discharge claim can turn out to be a winner. E.g., Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792 (S.D. Miss. 2015).

The upshot here is to be certain to understand the consequences of resignation. Some employers are very savvy at forcing an employee out in subtle ways that can be difficult to prove as a constructive discharge. Employees facing these hard choices may need to consult with an attorney for legal advice about their options.


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To get legal advice about an employment law, labor law, federal employee law, whistleblower protection, labor unions, worker cooperatives, immigration, discrimination, harassment, wrongful termination, severance, or any related question, you must first have a conflicts check by the firm. We represent exclusively workers, worker cooperatives and unions, but we still must check for potential conflicts of interest, for example, between a supervisor and employee.

First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.

Once we have confirmed there is no conflict, you may discuss your matter with the attorney in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.