In California, employers who force employees into resigning by unfairly discriminating against them can be guilty of violating the state’s laws against constructive discharge. Constructive discharge laws apply to employers who illegally discharge employees by forcing resignation when employees seek to enforce their legal state or federal employment rights or report illegal conduct by employers.

Constructive Discharge Test

The California Supreme Court’s test for constructive discharge is when employers do not actually fire their employees but engage in some type of illegal or unfair conduct that leads to resignation. Employers cannot legally force resignation to avoid liability for wrongful discharge or illegal conduct in violation of the California state antidiscrimination laws or federal antidiscrimination laws. Additionally, employers in California who retaliate against their employees for reporting illegal employment practices may be guilty of violating the state’s constructive discharge laws.

At-Will Employment

California, similar to the majority of other jurisdictions, is an at-will employment state. Employers can terminate their employees at-will and without notice as long as they do not violate either federal or state laws. Similarly, employees may resign for no reason and without notice. However, California courts have limited the at-will doctrine by viewing some employment resignations as unlawful because employees were forced to resign due to the employer’s unlawful acts. California courts have limited the at-will doctrine by acknowledging that terminating at-will employees is limited. Employers cannot retaliate against their employees for enforcing their legal antidiscrimination employment rights, forcing them to resign for reporting unlawful conduct or forcing resignation to circumvent the employer’s legal responsibilities to uphold employment laws.

Employee's Burden of Proof

Employees who file labor complaints alleging wrongful constructive discharge must show the employer’s termination violated public policy or employment laws. In California, examples of discriminatory activities include employees who refuse to work in hazardous environments, taking time off for jury duty, exercising their federal employment and state leave rights and filing grievances with the government. Employees may file discrimination and retaliation complaints with the Division of Labor Standards Enforcement. Employers may need to reinstate employees to their original job positions, pay back wages, purge their personnel records of any adverse memos and pay associated penalties. Employers may also face criminal state or federal charges for violating employment laws.

Equal Employment Opportunity Commission

The federal Equal Employment Opportunity laws prohibit an employer’s actions that make the workplace so intolerable for the resigning employee that she has no viable alternative but to resign. California employers who violate the Equal Employment Opportunity Commission’s federal antidiscrimination laws against discriminating based on race, religion, age, gender, disability or genetic information are guilty of discrimination even when employers do not actually discharge their employees. The United States Department of Justice uses a reasonable person test requiring the Division of California Labor Standards and Enforcement to perform a fact-sensitive review to determine whether any reasonable person would resign in light of the employer’s conduct or employment practices.


Since employment laws can frequently change, you should not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your jurisdiction.