“They’re trying to discharge her constructively. Do you know what Constructive Discharge means?” She asked.
As soon as I heard the term ‘Constructive Discharge,’ I knew I’d never seen it on a vocabulary quiz.
“No. What does it mean?” I asked.
She explained.
“Constructive discharge is a fancy way of saying “being forced out.” It’s not good. And if you’re not a lawyer or in human resources, you’ll probably learn what it means when it’s happening to you.”
“Oh my God. I’ve seen this my entire career and never knew it even had a name.” I thought.
You’ve seen constructive Discharge too. You may have experienced it. We’ve all made choices to avoid it.
Constructive discharge defined
“We can’t fire you, but we’ll make you so miserable you’ll quit, and then we won’t have to pay your unemployment.”
Then there’s the textbook definition:
“A constructive discharge occurs when your employer has made working conditions unbearable, forcing you to resign.”
Or as one person put it.
“I didn’t get handed a pink slip, but when you’re not wanted, people have a way of letting you know.”
HR isn’t always the secret police.
Employees aren’t always victims of evil-doers.
However, employers push employees out all the time to maintain and protect the, “We didn’t do anything wrong, YOU did,” power structure.
Constructive Discharge looks like this:
— Meeting invitations slow to a trickle, and you’re excluded from emails and generally looped out of what’s going on.
— People stop talking to you or stop talking when you walk in.
— Your emails don’t get answers, or they arrive too late to be of value.
— Suddenly, your work is not good enough, though nothing about your work has changed.
— Reviews, once good or even glowing, are now mediocre or bad.
— Instead of a bonus, you get a Performance Improvement Plan.
— Warnings and write-ups start so they can justify your eventual termination with documentation of your “poor performance”
— Your work, clients, assignments go away, or they overwhelm you with work.
— The words “Set up to fail” were practically invented to describe this scenario.
Constructive Discharge is illegal
It isn’t easy to prove you’re a target, and it’s even more challenging if you don’t even know constructive discharge is a real thing.
If you’ve ever experienced this and don’t fully understand what’s happening to you beyond knowing you’re in the process of being excommunicated, it can be hell. It’s not uncommon for the experience to leave long-lasting scars.
Talk to anyone who’s ever been through it. They’ll tell you.
Knowing constructive discharge exists and how it’s used gives you power to predict what’s coming and to protect yourself.
Seeing the endgame helps you in two ways.
You know what to expect. Having a sense of what’s coming next is enormously empowering. You can go on the offensive and protect yourself. Constructive discharge works to crush your ego, making you feel you did something wrong and deserve this treatment.
Without strategy, you end up being a miserable pawn in your employer’s endgame.
Remember, they’re almost certainly building a case to fire you in the event the hellscape they create for you doesn’t persuade you to quit.
If you’re getting pushed out, and you know what to look for you can prove constructive discharge and you can get unemployment benefits, be released from payback obligations on a signing bonus, and protect your mental health.
You’re not crazy, incompetent, or a failure. This is real and it’s carefully executed to leave you holding the bag and feeling like you did something wrong.
If they force you out, in addition to feeling horrible, you lose your paycheck, benefits health insurance, and possibly owe them money.
YES-AND. IF YOU HAVE NEVER READ A SINGLE ADDITION I HAVE MADE TO A POST, READ THIS ONE.
In the US, you have A FEDERAL RIGHT to communicate to your boss that you see what they’re doing, and by so doing, YOU RETAIN YOUR RIGHT TO UNEMPLOYMENT—EVEN IF YOU QUIT!!!
Here’s how it works.
1) go to work tomorrow and read the employee rights poster. By law, they’re required to have one, and they’re usually located in the breakroom. It looks something like this:
Usually, this will be posted next to a state labor laws poster, as well. (Also required by law, but I have seen them posted in two separate locations due to a building having a stupid wall layout, so if you don’t see both, do some poking.) There are a few different styles of these posters, but they’re all basically variations on a theme, so you should be able to recognize yours from the image posted above. I’ve read them hundreds of times in the last eight years, just to keep my memory fresh. If you don’t see such a poster, contact your state labor board, because that is VERY ILLEGAL. The law is unambiguous on this: the poster must be posted in a highly-visible (to employees) location that is readily accessible. Not in your boss’s office, not in HR, not on the back of the fridge. Highly visible, readily accessible, REQUIRED BY LAW. If you have to contact the labor board on this one, skip straight to step 2b while you’re at it, because your boss is up to some shady shit.
2a) now that you’ve had the primer of your rights as an employee, if everything is good for you, great! Keep an eye out and revisit these from time to time to be sure you’re not missing anything, especially if things start feeling rough. If things are NOT good for you, progress to 2b.
2b) if you suspect you’re the target of constructive discharge, DOCUMENT. EVERYTHING. Dates too, if you can remember them, although if you’re trying to remember “as far back as you can go” when you begin to document, your dates might be a little hazier. Ask for personal hard copies of any consultations, write-ups, improvement plans, reviews, etc. and so forth that you receive. YOU HAVE A RIGHT TO THIS DOCUMENTATION. Keep all of this in a file. If any of your coworkers make comments on what’s happening to you, note those down too: “on 1 July I called to inform my supervisor I’d be late due to an unexpected flat tire. I arrived six minutes after my shift was due to begin. I received a corrective action form. My coworker Linda commented that she was surprised, because although this is my first tardy in over three years, other employees with repeated, significantly more severe tardies do not receive corrective action forms. My supervisor did not explain why he felt I required this form after a single incident of tardiness.” If you know what you’re being asked to do is illegal, MAKE THAT CLEAR IN YOUR DOCUMENTATION. “After hearing me mention to Sarah that I was hoping for a raise, supervisor Paul asked to have a one-on-one and required me to sign a form stating I would not discuss my salary, in contravention of state and federal law.”
3) when you feel you have sufficient evidence that Some Bullshit Is Afoot, it’s time to write to your HR department. Instructions on how to do this will be on that poster (sorry, I’m home and getting ready for bed, I don’t have this part memorized), but basically you’re going to be telling them that conditions have deteriorated such that you may be forced to resign if they don’t improve. Note that the phrase “forced to resign” is IMPORTANT AS HELL. Make sure you keep a hard copy of this letter for yourself.
4) You now have to give them 10-14 days to read, respond, and implement changes (I forget the exact number of days but it’s in there somewhere). CONTINUE TO DOCUMENT.
5) best case scenario, they realize they done fucked up, and things will change for the better. More likely scenario, you have to quit. HOWEVER, if you have followed all of these steps correctly, you can still claim unemployment.
6) now go contact the IWW for information on how to start talking union to your coworkers before it gets this far: www.iww.org
And finally, a note because this has happened to me and statistically either has or will happen to some of you:
If at any time the poor conditions should escalate to include sexual assault or harassment by a supervisor, DO NOT PASS GO, DO NOT COLLECT $200, CALL THE LABOR BOARD IMMEDIATELY. Make an EXACT record of what happened: write down statements verbatim, if you were touched inappropriately make note of exactly how and where, if you were offered any kind of quid pro quo (e.g., a promotion in exchange for oral sex; sex in exchange for continued employment) make note of EXACTLY what was offered and asked for. It is 100% okay to call the labor board and say “I don’t know what to do, my boss groped my breasts today and told me he’d have a talk with his supervisor about my pay rate ‘if I was nice’. Please tell me what to do, I’m afraid if I quit I’ll lose unemployment.” Someone will be able to help you. In cases like these, do not wait. This is also true if you’re blatantly racially or religiously discriminated against. Please note when I say “blatant,” that’s a much higher standard than what Tumblr understands as blatant. If your boss says you’re pretty cool for an N-word, call. If your boss makes a disparaging comment about doo-rags, document and hold your horses for now. (Is that a microaggression? Yes. Is that something the labor board will find actionable? Not on its own.)
Stay safe out there. Don’t let the bastards get you down.
I have been through this, so let me add some tech-industry specific advice:
- If you’ve been placed on a Performance Improvement Plan, ask for digital and hard copies of the plan that have been signed by HR.
- If you have the strength to do it, accept the PIP, and indulge in malicious compliance. Do everything exactly as it’s outlined in the PIP document and nothing more. Overachieving against a PIP won’t help your situation, but don’t quit.
- Keep copies of every email and message related to your PIP on a separate USB.
- Find your company handbook. It is probably hidden somewhere on an internal website. Save a copy to the USB so you can research it for ANYTHING that might help you negotiate with HR at the end.
- Keep all of your notes on the same USB.
- Always assume your work computer has spyware on it.
None of this will help you keep your job. Remember that. All of this is to help you negotiate with HR when it’s time to review your PIP performance. WHEN they say you didn’t meet the goals that were outlined, refer to your stack of documentation and give specific examples of where you met those goals. Ask HR what the next steps are. Your ultimate goal is to make HR suggest that you and the company part ways.
DO NOT AGREE TO THAT MAGIC STATEMENT. That’s when you start negotiating the terms of the company letting you go. The things I politely demanded AND GOT in writing:
- 3 months salary.
- All remaining vacation time paid out.
- Continued insurance coverage for 3 months.
- A guarantee of a good reference if any potential employer asked for one.
- A guarantee that the company would not contest my unemployment claim.
After all of that was signed and I had digital and physical copies of that paperwork, I told HR that my last day of work would be the following day. Remember that at that point, you don’t owe them anything, including two weeks notice. Say your goodbyes and walk away.
gosh, this would have been handy to know while I was still trying to maintain my sanity in an increasingly hostile workplace environment
I was lucky enough to have allies elsewhere in the organization who helped me transfer and keep doing the important parts of my job (and greatly expand the good stuff!), but at least a decade of hell wrought such psychic damage that I doubt I'll ever fully recover
