Manufacturing A Resignation

Published March 15, 2008

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Instead of confidently telling an employee, "You’re fired," some managers try to subtly force the employee into voluntarily saying, "I quit."  While the latter might seem like it's free from legal risk, it's not; such an approach can invite a constructive discharge claim.

Planting The Seed

In manager Alexis Carver's absence, assistant manager Grace Burton assumed her role.  On one such occasion, Burton refused to submit the timesheets of two employees, who happened to be Carver's daughters.  Burton believed the timesheets were inaccurate.  Carver disagreed, and submitted them herself upon her return.

In the days that followed, Burton sensed a change in Carver's usually pleasant attitude toward her.  "Yesterday, she wouldn't speak to me, not even to give me a work assignment," Burton confided in a co-worker.  "And just this morning, she yelled at me for no good reason."

"I couldn’t believe that she carried on like that for a full five minutes.  I heard her all the way in the break room," said the co-worker.

"Maybe she's just having a bad week?"

"Or maybe she's living up to her reputation," suggested the co-worker.  "She always boasts about how she's never fired anyone, but she's certainly driven more than one employee to quit.  She even admitted doing so, remember?"

"I do remember, but you don't think she's trying to do that to me, do you?" asked Burton.

"I'm not sure what she's up to," replied the co-worker.  "But it certainly seems like once you get on Alex's bad side, she really does make your life so miserable that you quit."

During Burton's annual performance review a few weeks later, Carver was exceedingly critical of her performance, gave her her lowest ratings ever, and informed her that she could no longer leave early on Fridays.  That, combined with several more incidents of Carver either yelling at her or ignoring her, convinced Burton that Carver was trying to force her to quit.  Days later, Burton gave her manager exactly what she wanted; she resigned.  What Carver didn't expect was Burton's constructive discharge lawsuit.

Reaping The Legal Consequences

Generally speaking, for a constructive discharge claim to succeed, an employee must establish that the working conditions were so intolerable that a reasonable person would have felt compelled to resign.  A trial court reasoned that being ignored by one's manager and yelled at a few times in the span of a few weeks doesn't rise to the level of creating intolerable working conditions, so it dismissed Burton's claim.  She appealed.

Said the state supreme court: These seemingly tolerable incidents take on greater significance when viewed in light of Carver's reputation for making the work lives of those she didn't like so miserable that they quit.  A reasonable person could conclude that the relatively short period of mistreatment by Carver was just the beginning of a campaign of abuse that would have continued until Burton quit.  Case proceeds.

Misery Be Gone!

If you’re looking to get rid of a problem employee and don't want to pull the termination trigger, the answer is not to make them as unhappy with you as you are with them.  That doesn't mean you must avoid making decisions or taking actions that they won't like, but you must remain fair and honest in all of your interactions and communications with employees.

• Follow standard policies and procedures.  This is the best way to ensure your actions are fair.
• Address performance problems.  A performance appraisal or disciplinary warning that legitimately reflects an employee’s performance problems is not a valid indicator of constructive discharge, no matter how unhappy the employee is about it.
  This helps to show you have a sound business reason if you need to make an adverse change to the employee's working conditions.  Without one, the employee may think the change was made solely to make him/her miserable.
• Discipline in private.  Public humiliation can be a factor in establishing a constructive discharge claim.
• Remind employees about the organization's complaint policy, and take complaints seriously.  If the employee fails to utilize the policy and quits before giving the company a chance to investigate and remedy the complaint, the constructive discharge claim is weakened.  Consider photocopying the policy from the handbook and posting it in your department's break room, kitchen, or other common area.  If you do not have the authority to conduct a thorough investigation, get HR involved immediately.
• Request a resignation letter that states the employee's reason for quitting.  This will help to defend your position that the resignation was voluntary, if the employee later tries to claim that it was not, due to harassing or humiliating conduct.

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