Constructive Discharge?

Cheryl S SPHR

I have a question about terminating vs. giving an employee the option to resign. Could the "resignation in lieu of termination" be construed as constructive discharge? Is anyone aware of cases where this has been an issue? I believe there are times when it is appropriate to allow an employee to resign, but do not want to create additional legal issues by doing so. Please advise -- thanks!

Down_the_Middle

In the absence of a longstanding situation where the discharge or resign issue is allowed to continue, I do not see constructive discharge being involved your brief scenario. Constructive discharge generally means that the work environment was allowed to deteriorate to such an extent that a reasonable person would find it necessary to resign. I've had some experience with this issue and the burden falls on the employee to show a serious and pervasive type of deterioration. Your example doesn't talk about this type of environment, so I would discount the argument of constructive discharge.

Gar

I'm inclined to agree with Down-The-Middle. If the employee quits (takes the offer to resign), the burdon of proof is on him/her to make the case that he/she was forced into resigning. As long as your documentation demonstrates that the employee "got out of town one step ahead of the sheriff," I wouldn't worry about it.