Reprinted from the June 1, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

You Say Resignation,
Employee Says Termination...Who’s Right?

When employees resign, managers are the ones who have to prove they left willingly should a legal entanglement ever ensue. A simple resignation could get difficult if the employee later claims he/she was actually fired, or tries to rescind the resignation.

“I Quit...
Despite being a solid performer, Angela Tomp had a series of strained relations with her co-workers, including her supervisor, Abbie Jetson. In fact, on several occasions, she told Jetson that she wanted to resign. Each time, Jetson managed to persuade her top performer to stay. Tomp’s relationship with her co-workers, however, never improved.

“Angela, I think it would be best for everyone if I transferred you to another work group,” Jetson told her one day.

“What? Why?” asked Tomp.

“Because you can’t seem to get along with the other team members.”

“But I really want to work on this project. Tell me what I need to do to stay on this team.”

“Well,” hesitated Jetson, before letting loose, “you need to work on your interpersonal skills. You don’t listen to team members’ suggestions. You insist that everyone does things your way. If someone challenges your way of doing things, you either snap at them or give them the cold shoulder.”

Tomp stared at Jetson in shock. “If that’s the way you feel, then this conversation is over!” Without saying another word, she walked out of Jetson’s office, got into her car, and went home.

...On my terms only!”
Believing that the review of her interpersonal skills amounted to a blistering attack, Tomp turned in her ID badge and work computer the next day, which was Saturday. That Monday, she didn’t go into work and told several co-workers she had resigned. On Wednesday, she e-mailed Jetson a resignation letter that stated, in part: “I resign, effective six weeks after the date of this letter,” which happened to be two days after her five-year vesting date.

This time, Jetson accepted her resignation, but didn’t accept her resignation date. The supervisor decided that Tomp’s resignation would be effective immediately.

“You can’t do that! You’re just trying to prevent my benefits from vesting.”

“No, I’m not,” Jetson firmly stated. “You’ve made it clear that you want to resign. I just don’t see the point of dragging things out.”

“I do want to resign, but I guess that doesn’t matter since you’re firing me,” Tomp snapped.

“I’m not firing you. I’m accepting your resignation.”

Tomp ultimately filed an age discrimination lawsuit, claiming that Jetson fired her because of her age and in an attempt to keep her benefits from vesting. A court found that a “wealth of evidence overwhelmingly showed” that Tomp had resigned: 1) Jetson never told her she was fired; 2) Tomp voluntarily turned in her ID badge and company computer; 3) Tomp told co-workers that she had resigned; and 4) she e-mailed Jetson a resignation letter.

Action Tips

• Don’t give a judge or jury any reason to doubt an employee’s intent to resign. Follow these steps.
  
  
• Have employees submit their resignations in a typewritten letter. Do not accept it in e-mail form, as an employee may later try to argue that the message was shot off in the heat of the moment and he/she never intended to quit.
  
  
• Advise employees to think long and hard before submitting a resignation letter because once they submit the letter, it can’t be rescinded on their terms; the ball is in the company’s court whether to accept a subsequent rescission. Also, make them understand that while they can give you a resignation date, you have the right to pick an earlier date.
  
  
• Document an employee’s actions following a resignation. Voluntarily turning in an ID badge and company computer are good indicators that an employee has made up his/her mind to resign.
  
  
• Never present an employee with the option of either being fired or resigning. If the employee chooses resignation, you might be on the hook for constructive discharge. If the employee chooses to be fired, you’ll likely have to pay unemployment benefits.

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