Under Arizona law, a constructive termination occurs when working conditions are so difficult or unpleasant that a reasonable person in an employee’s shoes would feel compelled to resign. A constructive termination has the same force and effect as an actual termination.

In 1997, the state legislature adopted Arizona Statute § 23-1502, which provides that an employee must give the employer a fifteen (15) day written notice before he can resign and later assert there was a constructive termination. This notice can, however, be waived by the employer.  An employer will be deemed to have waived the right to receive notice of its employees’ intent to resign if it fails to properly warn its work force of this notice requirement. The employer can notify its work force of this requirement through a job posting in an area routinely visited by its employees by its employees (such as a cafeteria) or by including appropriate language in an employee handbook or manual.

The statute further provides that a constructive termination takes place if one of the following has occurred:  (a) evidence of objectively difficult or unpleasant working conditions so significant that a reasonable employee would feel compelled to resign, provided that the employer has been given the fifteen (15) day notice and the employer fails to respond to the employee’s concerns; or (b) evidence of outrageous conduct by employer or managing agent of the employer (including sexual assaults, threats of violence directed at the employee or a pattern of discriminatory harassment) if the conduct would cause a reasonable person to feel compelled to resign.

In light of the language of Arizona Statute § 23-1502, conduct may not need be outrageous to constitute constructive discharge.  Outrageous conduct is required only to avoid the fifteen (15) day notice.  If the employee posts a notice as required by the statute and an employee leaves his employment without giving notice, then he must show outrageous conduct on the part of the employer or the case may be dismissed.

The determination of whether a constructive discharge occurred is based on the specific facts of the case. A jury must evaluate all of the evidence to determine whether the circumstances under which an employee resigned amounts to a constructive discharge.  Whether working conditions are so intolerable as to justify a reasonable employee’s decision to resign is normally a factual question for the jury.  An employee must, however, identify sufficiently intolerable conditions to survive a motion to dismiss filed by the employer or the case may never get to the jury.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Constructive Termination, or any other personal injury, please feel free to contact Employment Law Attorney Brad Gardner at  480.461.5323,  log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.