Quiet Firing: Sneaky? Yes. Unlawful? Maybe.

If you’ve been paying attention to employment trends over the last few years, you’ve likely heard of “quiet quitting,” the phenomenon of employees performing only the duties in their job description and nothing more. But even more recently, a new phenomenon has arisen — “quiet firing.” It generally refers to situations in which employers attempt to push employees out of their jobs without formally terminating them. And while most employees generally are well within their legal rights to engage in quiet quitting, the case is not so clear for employers who engage in quiet firing. As such, you should consult a Norfolk employment lawyer if you’re dealing with a potential quiet firing situation. 

What Is Quiet Firing? 

“Quiet firing” is not a formal legal term. It’s a neologism that refers to employers who engage in behaviors intended to subtly (or, in some cases, not so subtly) imply to employees that they should quit or that the employer wants them to quit. 

Examples of behaviors that could constitute quiet firing include: 

• Gradually reducing an employee’s job duties
• Cutting an employee’s hours or assignments
• Excluding an employee from meetings and communications
• Imposing unexpected performance improvement plans on an employee
• Withholding constructive feedback from an employee
• Denying an employee training and development opportunities 
• Giving an employee tasks that are beneath their skill set
• Imposing an unmanageable workload on an employee
• Cutting an employee’s pay or benefits 

These tactics — if intended to encourage an employee to quit — are certainly sneaky. They’re also poor ways to manage employees. But none of them, either alone or in combination, is per se unlawful. That’s why interested parties must often look deeper to determine whether a specific instance of quiet firing is lawful or unlawful. 

When Quiet Firing Crosses the Line

While quiet firing behaviors in and of themselves are not necessarily unlawful, they can easily cross the line into unlawfulness in a few scenarios. 

Constructive Discharge

Constructive discharge refers to situations in which an employer makes an employee’s working conditions so objectively intolerable that a reasonable person in the employee’s position would feel they had no choice but to resign. Sounds a lot like quiet firing, right? In some cases, yes. However, the bar for proving constructive discharge is high — ordinary workplace conflicts, disagreement with management, and everyday stress are not enough. To prevail, an employee must show a pattern of more serious behavior, such as harassment, abuse, unwarranted demotion, baseless pay cuts, extreme micromanagement, or the removal of all meaningful work duties. For more information about quiet firing behaviors that could lead to constructive discharge claims, speak to a Norfolk employment lawyer. 

Employment Discrimination 

Quiet firing based on an employer not being impressed with an employee’s work is one thing. Quiet firing based on discrimination is another thing entirely. Employment discrimination, including that based on race, sex, age, or any other protected characteristic, is unlawful in virtually all circumstances. It is even an exception to Virginia’s at-will employment scheme. 

Examples of discriminatory quiet firing could include:

• Transferring most responsibilities from an older employee to a younger one
• Assigning a pregnant employee to more difficult tasks in hopes she will quit
• Reducing an employee’s hours after she returns from maternity leave
• Excluding an employee of a certain race from high-stakes, client-facing meetings 
• Excluding an LGBTQ employee from networking opportunities 

Readers should note that these behaviors may be unlawful even if they do not cause the targeted employee to quit. A persistent pattern of such behaviors may constitute a hostile work environment, which itself is unlawful. 

Failure to Accommodate 

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations for employees with disabilities. An employer’s failure to do so, absent a showing of undue hardship, is unlawful. Examples of failure to accommodate that could induce a targeted employee to resign include disregarding medical restrictions, refusing modified schedules, and requiring the employee to pay exorbitant sums to finance the accommodation. As with employment discrimination, quiet firing behaviors that do not cause the targeted employee to quit are still unlawful. For more information about the ADA and reasonable accommodations, please speak to a Norfolk employment lawyer. 

Retaliation 

Retaliation against employees for engaging in protected activity is unlawful under both federal and state law. Protected activities include: 

• Reporting discrimination or harassment
• Participating in an internal investigation
• Reporting fraud, waste, abuse, or workplace safety violations
• Requesting or taking leave under the Family and Medical Leave Act
• Filing a workers’ compensation claim

The issue with retaliation that could potentially implicate quiet firing is that “retaliation” is a broad category of behaviors, some of which are more subtle than others. Perhaps one of the most subtle is quiet firing. While not all quiet firing behaviors are unlawful — even if they occur in the wake of an employee’s protected act — they arouse greater suspicion in this context and can easily subject employers to retaliation or wrongful termination claims.  

Breach of Contract 

Most employees in Virginia are at-will, but for employees covered by employment contracts, quiet firing can trigger contractual liability if the employer’s actions violate its contractual obligations. More explicit examples of quiet firing that could breach an employment contract include stripping executives of contractually agreed-upon authority, assigning an employee to a location not specified in the contract, or significantly reducing the agreed-upon salary. Less explicit examples include lowering performance evaluations to reduce bonuses, assigning unmanageable workloads to trigger performance-based “for cause” termination clauses, or reassigning high-value clients to other employees shortly before the end of a commission period to reduce payouts. 

Handle Terminations the Right Way With Help From a Norfolk Employment Lawyer 

While quiet firing is not necessarily unlawful, it is indicative of poor management and raises the risk of wrongful termination lawsuits. Employers and employees alike would be better served by more direct and defensible methods. For more information about the legal gray area of quiet firing, please contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.