Legal Memorandum: Seniority Rights and Constructive Discharge

Issue: Under federal or Puerto Rican law, is an employment action based on seniority a constructive discharge?

A constructive discharge is defined under Puerto Rico law as “[t]he resignation of employment motivated by action(s) of the employer directed to induce or force [the employee] to resign, such as [to] impose or attempt to impose more onerous working conditions, reduce the salary, demote [the employee] in category or submit [the employee] to abuse or humiliation verbally or by action.”  Law 80 of May 30, 1976, art 5, 29 Laws P.R. Ann. § 185e.

Seniority rights are a valid consideration when making employment decisions, and honoring them should not lead to a finding of a constructive discharge.  An employer is entitled to use seniority to make staffing decisions.  Considering seniority is not an illegal employment practice.  See 42 U.S.C. § 2000e-2(h).*FN1   Puerto Rico law, in fact, requires employers to follow seniority when they lay off employees for business reasons and when they recall the employees within six months.  See Law 80 of May 30, 1976, art. 3, 29 Laws P.R. Ann. 185c.  Under federal employment law, “seniority systems are a valid method of providing different levels of compensation and privileges, even if they have a discriminatory impact on employees.”  Balint v. Carson City, 180 F.3d 1047, 1051 (9th Cir. 1999).  The Supreme Court held that an airline is not required to “carve out a special exception to its seniority system” to accommodate an employee’s religious obligations and it should not have to be left short-handed or bear more than a de minimis cost.  […]