The Opportunity to Resign: More Valuable Than Ever?
We have been suggesting to you for years that you consider offering to any employee, whose employment you have decided to terminate, the opportunity to resign. It is a human touch. It can help a difficult termination meeting go more smoothly, and it may serve as that "spoonful of sugar to help the medicine go down."
We have also advised you that a resignation in lieu of being terminated doesn't change either party's legal rights or obligations. Recently, however, our Court of Appeals issued an unpublished (i.e., non-precedential) opinion in which this was found not to be the case. In Lagrow v. County of Berrien, 2008 WL 5197120 (slip op 12/11/08), the plaintiff had submitted her resignation after being advised of her termination and given the opportunity to resign. She later sought to revoke the resignation, which her employer refused to allow, and she sued the County on various wrongful discharge theories. The Court of Appeals upheld a Circuit Court's dismissal of her claims, stating flatly that because she had resigned and had in fact never been discharged, she was foreclosed from bringing any claims on either a discharge or constructive discharge theory.
The gist here is that it appears to make more sense than ever for you to offer any about-to-be-terminated employee the opportunity to resign. At the same time, we add at least two important caveats. First, several of us question the appellate panel's reasoning and are not at all sure it is sound enough to withstand future scrutiny, whether by a subsequent Court of Appeals panel or on appeal to the Supreme Court. Second, the Opinion is unlikely to have any impact whatsoever on the parties' respective rights and obligations under either Unemployment Insurance or Workers Disability Compensation laws.
For additional information on managing your company's employee relations, or addressing or avoiding employment litigation, please contact an attorney in Varnum's Labor and Employment Relations Practice Team at 616/336-6000.
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