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Comment by gamblor956 | Hacker News Reader

Moving a person's office of employment outside of what would be considered a reasonable commute is treated as a constructive dismissal in the U.S. It is generally legal, because is treated as a normal termination by the employer (basically: the employee's "current" job is being terminated and the employer is offering them a "new" job in a new location).

This means, among other things, that the employee qualifies for unemployment, the employer's unemployment insurance account will get dinged, etc.

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My understanding (I am not a lawyer, talk to one if you think you're subject to a situation like this) is that constructive dismissal is NOT legal, and that the whole reason this is a legal term is that this is one of the categories of job separation that falls under "wrongful termination" in most states, even those that are otherwise under an "at-will" employment regime.

In the particular case of Twitter, they announced in 2020 that they would allow "permanent" remote work, and reiterated this policy at least as late as March of this year [1]. If I'm correctly informed, the change in this policy was announced in an e-mail that was sent out on Wednesday, and was to be effective on Thursday, the following day.

It would seem to me that this is about as straightforward and well-documented a constructive dismissal fact pattern as you could conceive.

[1] https://thinkremote.com/twitter-to-open-offices-this-month-b...

Here's CA's stance, and consider that CA is probably going to be the most protective state in the US when it comes to these things. Other states with decent labor protection mostly copied our laws.

https://workplacerightslaw.com/library/retaliation/construct...

My take:

The TL;DR is that it's just equivalent to getting fired. If you can prove you got shuffled out the door via constructive dismissal for reasons it's illegal to fire people for, then it's illegal. If at-will would've applied anyway, it's just a jerk move. Mostly it means you still get unemployment and can still sue for wrongful termination, even though you technically resigned.

What I suspect might be more of an issue, at least in CA, is that our at-will law has a "good faith" clause that basically implies you can't fire someone for a reason that would broadly be considered unethical in the context of an employer-employee business relationship. The classic example is canning someone just before they get their commissions purely to save yourself of the cost of paying them. My guess is that's one reason why Facebook, for example, is giving all their employees the mid-November vest even if they got fired first.

Constructively dismissing someone out the door probably takes away a lot of argument that you were acting in good faith.

If they promised these people that they could work remote and they invested in property then get forced to move, I actually wonder if it could open up the company to promissory estoppel (i.e., I had a financial loss based on a reasonable promise you broke, and now I want to recover).

The times I've heard about that cause in the past were exactly for situations where you moved for a job, then the job was rescinded. At the very least, that angle probably wouldn't look great in court during a wrongful termination suit.

(IANAL either, but since I work in CA I try to stay reasonably informed of the laws that affect me.)

> Other states with decent labor protection mostly copied our laws.

CA is not special protecting employees. It’s an at-will state. About the only useful thing it has is banning non-competes.

First, you’re dangerously wrong.

We’re one of the few states with both implied-contract and bad-faith codified as explicit exceptions to at-will, and we’re significantly more likely to resolve in favor of the employee than in most states because we actually mean them.

The only question is whether naysayers (usually management or people parroting what management said) convince employees that we’re strictly at-will and have no options if terminated, when we are not and often most certainly do.

Do you think the corporate expense of going through motions of PIPs for a month—and risking quiet quitting or even disgruntled employee retaliation in the meantime—would be a thing if they didn’t have to cover their own butts or risk a lawsuit they’d actually conceivably lose?

In states without these protections they generally just fire you. And I’m not even going to get into the protected class aspect where CA has many nuances, and “no reason” becomes awfully tricky to defend if challenged by the vast majority of workers who do fall within one.

So yes, realistically an employer needs a reason to safely fire you in CA.

That’s almost always quietly recognized and accommodated at our level via either a reason or a significant payoff out the door in exchange for a waiver of liability. We can sue the crap out of them and quite feasibly win if they don’t.

It’s only at the lowest level jobs where this gets completely ignored. That’s largely because employers are confident the min-wage folks aren’t going to sue them, same reason poor people get illegal leases around here that never get challenged.

Second, I never actually said we had special protection in my original post.

I said we had (among) the best protections, and that we provide the model for most other protective laws of this type in the USA. And I said it in the context that we were the high water mark for protection and even then the OP’s conjecture wouldn’t necessarily fall under it.

Think that’s all easily verifiable on your part. Not sure what else you think you’re disputing there.

I am a lawyer...

Constructive dismissal as a legal concept is relevant for purposes of determining whether the employee voluntary separated (i.e., quit) or was terminated by the company. This then determines the legal rights/obligations of the parties, including for example eligibility for unemployment, severance, etc.

Constructive dismissal is treated as a termination, meaning involuntary on the employee's behalf. Whether the constructive dismissal is legal depends on whether a termination in the same circumstances would be legal. Terminations are generally legal, so constructive dismissals are generally legal...

I agree that in this case the Twitter WFO policy is constructive dismissal. And elsewhere I have said this would fall under the WARN Act because it's clearly part of the mass terminations already announced early this week.

Ah, I see the error of my ways now. The post to which I was responding was indeed correct and this is not, per se, an illegal tactic if the worker did not belong to an otherwise protected class. Twitter just owes them the same legal benefits as if they had been laid off.

I stand corrected; thanks for setting me straight.

"constructive dismissal" is an action an employer takes which the employee can treat as equivalent to being laid off. Being laid off comes with various benefits, like eligibility for unemployment, and is included in specific laws, like IIRC in California there has to be a notice period before laying off X people in the same month. "Constructive dismissal" just means cutting everybody's salary in half, reducing hours, etc counts as you being laid off if you choose to leave at that time, rather than you resigning. Resigning does not come with unemployment or those other protections.

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