It used to be called “Constructive Discharge” – Mary T. O’Sullivan

By Mary T. O’Sullivan, MSOL

“…it’s up to you, the employee, to prove you were constructively discharged, your description of the conditions alone may be insufficient, particularly if it’s the only evidence you have”. – Indeed

Since last week’s column, I’ve been thinking a lot about “Quiet Firing”. A flood of prior incidents of “Quiet Firing” inundated my consciousness, just as the Pawtuxet River swamped the northern parts of Rhode Island back in 2010. The Pawtuxet deluge didn’t just bring in water, it carried along stinking, raw sewage sludge into homes, schools, and of course, the indoor malls.

The vile practice of “Quiet Firing” is really just a newly coined HR term for what is known in employment law circles as “Constructive Discharge”, and for employees subject to it, can be as devastating and destructive as a river surging over its banks. The term “Constructive Discharge” is defined by federal law under The Worker Adjustment and Retraining Notification Act (WARN). Enacted in 1989, the WARN Act defines the term “constructive discharge” as taking place “when a worker’s resignation or retirement may be found not to be voluntary because the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign.” In other words, when an employer makes an employee’s life so miserable, he or she can stand it no longer and is driven out of his or her job, just like the stench caused by the storms and sewage water of 2010 drove Rhode Islanders out of their homes and businesses.

Constructive Discharge takes many forms.

Sometimes people get caught up in political battles. In one case, an employee gained some inside information that the CEO found useful. The CEO then humiliated the employee’s boss, a VP, for not knowing the insider intelligence. The VP demanded that the employee stop the practice of reporting any exclusive news to the CEO, however, the CEO liked to taunt the VP, so he continued to reach down into the organization to capture this seemingly important material. He went so far as to use it against the VP, making him feel ignorant and unaware of important details, (which in some cases turned out to be nothing more than industry “gossip”). The CEO even tells the VP that the employee “reports to me”, setting up a barrier between the VP and his employee, creating unnecessary tension between the two. So, who gets caught in the middle of this political power game? The information collecting employee, of course. He becomes the victim, even though he complied, fearing the consequences of disobedience to the CEO.

The situation became untenable as the VP assumed the employee was acting smugly when he’s only a pawn in this high-stakes political power struggle. What choices does the VP have when his direct report seemingly goes above him, and apparently against him and behind his back? After consulting with HR, the VP decided to initiate the constructive discharge process.

The first action was to restrict and eventually cut off all travel, thus keeping the employee from rubbing elbows with those industry insiders who share valuable tidbits of juicy news with only a select few. Once that’s established, the employee was removed from the Results Based Incentive (RBI) program, meaning he no longer qualifies to receive a bonus. Then in violation of federal law, the VP, with the help of the HR team, twisted this employee’s status from employee to an “executive officer”, which meant his bonus could be taken away based on his “misdeeds” in that capacity. In fact, the Department of Labor has defined what, in their nomenclature, constitutes an “executive: “The employee must customarily and regularly direct the work of at least two employees or their equivalent.” This person was far from an “executive officer”, as a business development manager, he was several layers removed from the C-Suite. Furthermore, he did not have any direct reports or direct the work of any employees.

He also noticed his online performance review was locked; his access was cut off from viewing his record, so he couldn’t compose an appropriate rebuttal. The employee soon found a lawyer who reminded the company of their federal violations and eventually reached a workable deal for the employee’s exit, with the sole stipulation that he empty his office and leave the premises the next day. I happened to walk by this person’s office on his final day, and emotionally looked on as he dejectedly piled his years of work into a huge trash bin. It was late in the day, about 6:00 PM, and I wondered how he would completely clear out his office and finish the job. However, the next morning peeking into that office, it looked as if no one had ever inhabited it.

There are innumerable tales of constructive discharge to tell. Most often, employees are caught unaware, off guard, and by surprise. Without some insight into what’s happening to them, employees can’t think straight enough to document and complain. They are in so much shock, that incurring legal fees is the last thing on their minds. Their families beg them to quit, and they often do, missing out on many benefits they’re due – like unemployment, a severance package, training allowances, and their dignity. Although it’s hard to consider, unless you want to be swept away with the stormy waters of a monsoon river, you must be prepared for anything to happen on the job. You. never know when the job will turn foul.

“But it all boils down to a basic question:  were your working conditions so unbearable that you had no other choice but to quit your job?” – National Law Review

___

Connect with Mary:

[email protected]

www.encoreexecutivecoaching.com

https://www.linkedin.com/in/marytosullivan/

BUY MY BOOK

Read all Mary’s columns here: https://rinewstoday.com/mary-t-osullivan-msol-pcc-shrm-scp/

Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas. Member, Beta Gamma Sigma, the International Honor Society. Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University. Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.