QuestionDear Alan: What is the appropriate procedure/consequences of resigning while on leave under the Family Medical Leave Act (“FMLA”)?

Background: six years, incredible performance. Company was acquired, and I received a new manager from the acquiring company, who instantly displayed classic “bully boss” behavior. To protect my health, I immediately starting looking for a new job. Unfortunately, not fast enough: three months later, my new manager then claimed I was being insubordinate, and claimed – without basis – that my performance was poor.

My blood pressure shot through the roof, and my heart rate went sky-high, too. My doctor insisted that I take a FMLA leave of absence, which I did. In the meantime, a new job offer from a different company came through, and I have accepted it.

I do not want to present a formal resignation, and give “notice” of two weeks, because I fear that I will be immediately fired. As the primary provider of income and benefits for our family – including one child who is severely disabled and has large medical costs – I can’t afford to make a mistake. How do I handle the resignation?  

Michele
Charlotte, North Carolina

Answer: Dear Michele: My heart goes out to you for all you have been through, especially with your bully boss, and the responsibilities you carry for your family. Here are my suggestions and thoughts:   

1. First and foremost, you must be careful not to lose a single day of health insurance coverage. In considering your transition, I believe your primary consideration at the moment should be to avoid losing even a single day of health insurance coverage, because the possible consequences of that to you and your family could be quite bad. When you leave employment, most insurance plans continue your coverage until the last day of the calendar month in which you are employed. (So, if your resignation is effective October 1, 2 or 3, you may have coverage until October 31.) However, some insurance plans insure you only to the very last day of employment, and not a single day after.

When you start new employment, some insurance plans do not begin coverage for 30, 60 or even 90 days on the job, although I think the most common scenario is one in which new employees (and their families) are insured on the first day of the next calendar month after you begin work. So, you need to make sure that the two coverages overlap by at least a day or two, and in all events do not “miss one another” by even one day. You can use COBRA coverage from your “old” job for a short period to help you do this, if COBRA coverage is available to you.

2. Second, FMLA does not forbid an employee from ending the FMLA leave of absence early. The federal FMLA law grants employees important rights, but places very few burdens on employees. Even though an employee takes a FMLA leave of absence, there is no reason an employee cannot end that leave of absence early, for any reason, even if it is to take another job.

3. Third, nor does FMLA say that you must return to your employment at the end of your leave of absence, or provide two weeks notice of not returning. FMLA does not say that an employee must return to his or her employer, or that any certain prior notice of non-returning is required.   

4. You’re right: you may be immediately terminated if you give two weeks notice; so, in your circumstance, on your first day on the new job, you should consider just emailing your employer that “I will not be returning. Thank you for the opportunity.” It’s sad, but true: these days so many employees are immediately fired when they provide two weeks notice. In your circumstances I would strongly consider NOT providing two weeks notice, for the serious consequences that it might cause to you and your family. Given that you have a bully boss, the chances of your immediate firing are much higher.   

5. Be careful, though, not giving notice sometimes entails losing out on stock or stock options, and certain other benefits and payments.  One important thing to consider though: does your Employee Handbook, employee equity plans, or Company Policies say something like this:  “If you do not give at least 15 days (or 30 days) notice of resignation, you will not receive your stock or stock options, or some other benefit or payment.” That is becoming more and more common, and should be taken into account. Consider, too, what personal property may be in your desk or office, or on your computer, and make sure to prepare and send a list to your employer requesting its prompt return.

6. One last thought: Consider submitting an “Involuntary Resignation.”  Whenever a client of mine resigns from a “bully boss” situation, I always counsel them to consider submitting an “Involuntary Resignation.” By this, I mean (a) stating clearly that you are not leaving voluntarily, but you must leave involuntarily due to the horrific treatment you’ve been subject to, and (b) letting the bully boss know that he or she might suffer consequences for what they did to you, and for what they might do to others.

If you’re interested in this, please read my Newsletter on the subject of “Involuntary Resignation,” that tells all you need to know about Involuntary Resignation. To do so [click here]. Also, consider watching my YouTube video on the subject by [clicking here].

We offer a Model Involuntary Resignation Letter that you can use as a guide in preparing your own letter. To obtain a copy simply [click here].

Michele, you’ve asked for the appropriate procedures/consequences for resigning while on FMLA leave. From your description of your circumstances, Michele, and my experience with FMLA, this is the path forward I think you should give serious consideration to following. Though I do believe in giving employers reasonable notice, the way you’ve been treated, and the consequences of an immediate firing in retaliation , both suggest to me that not providing notice of departure – except “retroactively” – is the wisest course.

I truly hope that this helps, and I expect that you will return to health rather quickly after getting away from your bully boss. I hope, too, that you keep returning to our blogsite, and encourage others to do so, too, for any “working wisdom” you might need.   

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.