Employers generally go to great lengths to retain valued employees. They know the benefits of keeping good, experienced people and avoiding the costs of recruiting and training new hires. Sometimes, though, the words “I quit” are music to an employer’s ears. A problem employee out the door seems like a problem solved.
But is it? Suppose an employee gets mad, quits, and storms out. Then, he thinks it over and goes crawling back, begging to return to work. Now the employer has a decision to make — and it’s not one to take lightly.
What are the risks?
“Employers often get a false sense of security when a ‘problem’ employee quits,” says John Lovett, chair of the labor and employment law practice at Frost Brown Todd LLC in Louisville, Kentucky. “Quitters can attribute their reason for leaving to a ‘hostile environment’ or other unlawful condition in the workplace. If an employer fails to reinstate a quitter who wants to return, the employer’s decision is subject to the same legal scrutiny of any other employment decision.”
Just the fact that the employee had the job recently and perhaps even had a good employment record may be evidence that he or she is qualified for the job. “A resignation should turn ‘on,’ not ‘off,’ an employer’s legal alarm system,” Lovett says.
Lovett recently wrote about a case (Sander v. Gray Television Group, Inc.) in the Kentucky Employment Law Letter in which the Sixth U.S. Circuit Court of Appeals ended up deciding the issue in favor of the employer, but it took a few rounds in court and was decided in a 2-1 decision.
Lovett reminds employers that they face the same legal questions when deciding whether to take an employee back as they would in making a discharge decision.
For example, if a person over 40 years old quits, the employer needs to consider whether the worker can claim age discrimination. Judges and juries don’t necessarily perceive a quit like employers do, Lovett says. Instead, they’re likely to think “you didn’t fire the person; you must have thought they were a good employee,” he says. In a trial, it may look like the employer was trying to get rid of someone of that age.
“Employers may think if someone quits, that ends their rights, but that’s not the case,” Lovett says.
Certainly someone who is a poor performer and an example of bad behavior on the job doesn’t need to be taken back, but “in the absence of something like that, the employer’s decision to not take him back can be a pretext” for an unlawful reason to get rid of the employee, Lovett says.
“It’s not irrelevant that they quit. The circumstances surrounding the resignation may be a good reason for not bringing them back, but resignation alone is not going to solve all the legal problems,” Lovett says.
Do you want the employee back?
Sometimes an employee wants to rescind a resignation and the employer may jump at the chance to take the worker back. Any downsides to going that route? Reggie Gay with the McNair Law Firm, P.A., in Columbia, South Carolina, wrote on the issue in the October 2011 issue of South Carolina Employment Law Letter.
Gay wrote that in most circumstances the employer should feel free to take the employee back. “You should, however, be careful because you may be establishing a precedent for future situations,” he wrote. “As always, you should consider how you’ve handled similar situations in the past and take into consideration how the decision may affect you in the future.”
In making the decision, Gay points out factors to consider including whether employees previously have been allowed to come back after resigning, whether the position already has been posted or filled, whether job duties have been reassigned to other employees, and whether the employee’s previous job performance was satisfactory.
Gay wrote that typically after a resignation is tendered and accepted, the employment relationship is severed and the employer is under no obligation to rehire an employee, but other circumstances may exist.
“Of course, if there is an employment contract, labor contract, or company policy governing the situation, the contract or policy would take precedence,” Gay wrote. “However, the general principle is that once the employment relationship is severed, there are no further obligations on the part of the employer for continued employment.”
Constructive discharge, defined by the Equal Employment Opportunity Commission (EEOC) as forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay, is an issue to consider. If the employee has evidence that he or she was forced to resign, that may lead to a legal claim since constructive discharge is included on the EEOC’s list of prohibited practices.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.