What is Involuntary Resignation? Archives

Constructive Discharge – Key Words & Phrases

Published on August 15th, 2017 by Alan L. Sklover

Key Words

What is the meaning of:

Constructive Discharge?

Many people use the phrase “constructive discharge” (or “constructive termination”) to mean, generally, “This place has become intolerable, if not impossible, to work in.”

In doing so, most are part right and part wrong. Because this is an increasingly common situation, let’s here and now set the record straight.

Speaking very generally, and not in the legal sense, “constructive discharge” means that the conditions of employment have become so intolerable that no reasonable employee could possibly remain on the job.

In this very general – but not legal – meaning while the employee is free to quit his or her job, if he or she has done so, he or she has (i) no real legal claims, (ii) no real claim to unemployment, and (iii) no other real claims, remedies or rights.

Legally speaking, “constructive discharge” means that three things have happened: (a) conditions have become so intolerable that no reasonable person could remain on the job; AND (b) the employee has given the employer notice of the intolerable condition(s), without success, AND (c) the intolerable condition violates some law, company (or public) policy.

Here are two illustrative examples:

    1. First example: Your manager is disorganized, has a terrible memory, rarely bathes, and asks employees to get her shoes shined and fetch her lunch. She also requires that team members come in early and stay late, almost every day. This is surely humiliating, insulting and obnoxious, so much so that employees leave after just a few months after trying to put up with it. But no employee is promised the ideal boss, or even a good or nice one. This is not, “legally-speaking,” constructive discharge.

    2. Second example: (a) There are odors and gases in your workplace that often make your eyes burn, and make everyone nauseous. (b) Your manager repeatedly speaks to people with nasty references to their religion, gender, skin color and/or private parts. And (c) he retaliates against anyone who objects or reports him to HR. In addition, and (d) you have reported his ways to HR or senior management, without success, AND (e) each of the conditions violates company policy or the law, or both.

If these practices have continued after you have reported them, and make staying intolerable, you have a pretty solid “legal case” of constructive discharge, and thus pretty solid legal claim, right to unemployment benefits, and even possibly severance.

Simply put, to have a true, “legally-speaking” constructive discharge, you need (a) AND (b), AND (c), each as noted above.

Those who face “legally speaking” constructive discharge at work should very seriously consider NOT resigning, but RATHER “RESIGNING INVOLUNTARILY.” to read more about this great concept, something we are proud to have invented, [just click here.]

Get the picture? Keep it in mind. You read about it here. Knowledge is power. Forewarned is forearmed. That’s what SkloverWorkingWisdom™ is all about.

For a complete list of our Model Letters, Model Memos, Checklists and Form Agreements, just [click here.]

For a telephone consultation on strategies to deal with “constructive discharge” or other workplace issues, just [click here.]

© 2017 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

“Due to anxiety attacks, I am on FMLA leave; will I be fired when I return?”

Published on December 28th, 2013 by Alan L Sklover

Question: Two weeks ago, I had an anxiety attack at work – my third one. I thought I would be written up and terminated, but instead Corporate Human Resources told me I was qualified for Family Medical Leave Act, or FMLA. So I am out on FMLA leave.  

I feel that, when I go back, I will be terminated. Should I be prepared and have my resignation letter handy? 

Alhambra, New Mexico 

Answer: Dear Sharon: Your note to me contains just a few of the facts I would need to know to give you a definitive answer to your question. I don’t know, as two examples, what seems to have led to your anxiety attacks, and why you feel that you will be terminated if you return to work. However, even with the few facts you have provided, I believe so many people share your problem or have one like it, I will do my best:   

 1. As I say all the time, your health must be your number one issue to address, above all others, because without your health you cannot address any other issues in your life. I am surely no health professional, or a therapist of any kind, but it seems to me that your having anxiety attacks is something of a health issue, perhaps one of emotional health. It seems to me that your employer’s Human Resources Department agrees with me, as they see your having repeated anxiety attacks as qualifying you for the federal Family Medical Leave Act, or “FMLA.”  

So, in our analysis of your workplace predicament, and what to do about it, I hope we agree that your regaining your health should be your number one goal, and the “guiding needle on your “compass.” 

2. If you believe that your anxiety attacks may be caused by something or someone at work, you may qualify for Workers Compensation that could be lost if you simply resign. When an employee resigns from his or her job, that ends the employment relation. And, too, it may end some of the employee’s rights – or consideration of those rights – given to employees by the law.

If you believe that your anxiety attacks may be related to something or someone at work, then you may qualify for Workers Compensation assistance, which in most states will pay to you the wages you lose by being out of work, which could be a long time, as well as your medical expenses to help with your health condition, which could be a lot of money. In most states, employees do not have to pay the legal fees of their Workers Compensation attorneys; the local Workers Compensation Insurance Board pays those for the employee. So, this is something you should definitely look into before you consider resigning. 

Workers Compensation cases are generally handled by experienced, specialized Workers Compensation attorneys. You can probably locate local Workers Compensation attorneys by contacting the Bar Association referral service in your town or city. 

3. The same thing goes for your potential rights to Disability payments: you could lose them if you simply resign. In almost all states, employees who find themselves unable to work at all have rights to government-sponsored disability payments. If, near the end of your FMLA leave of absence, you or your physician or therapist believe that, due to your emotional health, you just cannot continue to work anywhere, you should ask your employer’s Human Resources Department to provide you all information you may need to apply for what is often called “Short Term Disability” or STD for short, and is sometimes referred to as “Statutory Disability,” as well. 

Some employers have “privately financed” disability policies for their employers, which means that they pay premiums to an insurance company for “Long Term Disability” coverage for their employees. Some of these policies last 5 years, 10 years, or even possibly until you are 65 years old. Surely, before you return from your FMLA leave, you should look into whether your employer has this kind of “privately financed” long-term disability insurance coverage for its employees, because  this, too, could be a very valuable legal right that you could lose out on if you simply resign. 

4. You just might also qualify for a “Disability Accommodation,” too. Almost every person, sooner or later, either (a) has a disability, (b) has had a disability, or (c) will have a disability. That’s life. Fortunately, the Americans with Disabilities Act (or ADA) provides that almost all employees are entitled to reasonable disability accommodations at work. Said a bit differently, if you are qualified to do your job, and could do your job effectively, if only your employer provided you with a reasonable accommodation, or change in your work circumstances, then you are entitled to such an accommodation by federal law.

Perhaps working on a high floor in a big building causes your anxiety, or suppose that your anxiety was caused by constant vibrations in the floor, then in these circumstances it would not be unreasonable to ask your employer for relocation to a lower floor, or a building without vibrations, as a reasonable accommodation to you. 

You can get a copy of our Model Letter Requesting a Disability Accommodation at Work if you just [click here.] It shows you “What to Say, and How to Say It.”™ Delivered by Email – Instantly!

5. It may be key to consider why your employer’s Human Resources Department was so gracious to suggest you take a FMLA leave of absence. In my experience, it has not been common that Human Resources representatives suggest FMLA leaves of absence. I have seen four different reasons for such graciousness:   

(i) First, of course, your Human Resources representative might simply be a gracious and caring person. In my 30+ years as an employment attorney, I have dealt with many, many Human Resources representatives and managers, and by and large they are a very caring lot. Sure, there are some “bad apples,” but by and large I have found most Human Resources people to be caring professionals. In fact, I have many clients who are Human Resources professionals and almost every single one is gracious and caring. If this is the reason you were advised of your rights, I say “Hooray for Human Resources!” If this is the reason, I also think that you may have little or no reason to fear termination when you return to work. 

(ii) Second, your Human Resources representative might know that the federal Family Medical Leave Act, or FMLA, actually requires employers to advise employees of their rights under FMLA. Frankly, many employers do not do this, because managers often say to their own supervisors and to Human Resources personnel something like, “With this person out on leave, and my inability to replace them right away, I will not be able to fulfill the expectations of Senior Management.” Said differently, many managers find employee rights under FMLA to be a pain in the neck, so to speak. If this is the reason, I say, “Hooray for FMLA!” This would also make me believe that Human Resources will not likely want to terminate you when you return, because it could very well look like they are doing so in retaliation for your exercising you federal FMLA rights. 

(iii) Third, you may be viewed by your Manager as a very valuable employee, the kind of employee your manager does not want to lose, and so he or she is hoping that a leave of absence to get better is the smartest way to go. If this is the reason, then you have very little to fear about being terminated when you return.   

(iv) Fourth, you may be viewed by Human Resources as an employee who might bring a lawsuit for some legal claim against the company they may fear. In these circumstances, employers and their Human Resources departments would not want to create another possible basis for a lawsuit, so it would not seem likely that they would terminate you when you return to work.

 So, from what you have told me, it seems your fear of being fired when you return might just be larger than need be. 

6. It may be wise to have a resignation letter prepared before you return, but if you do it would be wisest to make it an “Involuntary Resignation” letter. A few years back, I came up with a very helpful concept I call “Involuntary Resignation.” You might want to read more about it by simply [click here.]  

The basic idea of “involuntary resignation” is this: If you resign, you are likely going to lose any chance of collecting unemployment benefits (which is not ordinarily given to employees who resign) or receiving severance (which is also not ordinarily given to those who resign.) 

On the other hand, if you put into your resignation that it is entirely “involuntary” – for examples, because of constant bullying, or a grave danger, or repeated sexual advances, or other condition at work, and your employer has not corrected it – and this has resulted in your being unable to continue due to it giving you anxiety attacks, then it is more likely that you will receive unemployment benefits and severance. 

What is the best proof of whether your resignation is “voluntary” or “involuntary?” Simply, what you expressed in your resignation letter. 

For those who would like to present an Involuntary Resignation, but don’t know “What to Say and How to Say It,™” we offer a “Model Involuntary Resignation” letter that you can use. To obtain a copy just [click here.]  Delivered Immediately by Email, 24 Hours a Day. 

7. Sorry for taking so many words to answer your brief question, but these thoughts make up the kind of analysis that underlies successful workplace “navigation” and “negotiation.” Sure, this kind of stuff can be confusing, and complicated. But if you take it step by step, you can reach a better result. And, too, an understanding of “how these things work” definitely reduces anxiety that so often arises at work, and can nearly paralyze you from going forward. As the old saying goes, “Yard by yard is very hard, but inch by inch it’s a cinch.” You can do it, and do it well . . . I promise you!  

Incidentally, if you are initially unsuccessful in obtaining one or more of your desired objectives in submitting your own Involuntary Resignation, we offer a “Follow Up Letter to Voluntary Resignation.” It shows you “What to Say, and How to Say It.”™ To obtain a copy for your adaptation, just [click here.] Delivered Immediately by Email, 24 Hours a Day. 

Sharon, I hope this is helpful to you, and that you will consider these thoughts as you move forward. More than anything, I hope that it be guided more by your leverage and facts of your matter than you are by “what I need.” 

Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!! 

My Best,
Al Sklover

P.S.: To reduce your anxieties, and keep you “on track,” we offer our 119-Point Master Checklist for Involuntary Resignation. To obtain a copy, just [click here.] Delivered Immediately by Email, 24 Hours a Day.  

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2013, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Directed by my employer to discriminate; what can I do?”

Published on April 18th, 2012 by Alan L Sklover

Question: Alan, I have been employed for over one year in a temp staffing agency. I have reached my limit in having to discriminate against people of color, and older people, and now pregnant applicants. Because I will no longer follow the temp agency’s “guidelines” for who to hire, my job is now in jeopardy.

Already two employees are suing the company for their outright discrimination. I have been working in temp staffing agencies for a long time, and this is by far the top one when it comes to discrimination. I have a ton of email in which I am told the “kind” of applicants to hire. There is good reason to believe I may soon be replaced, and on trumped-up charges.

Now I feel forced to quit. This agency is pretty big, and I am scared of retaliation. Please – what can I do? 

Tired of Discrimination
Milwaukee, Wisconsin  

Answer: Dear “Tired”: Your situation is definitely one that calls for some strategizing, and action. Here are my suggestions:     

1. First and foremost: Don’t fret; make a plan. In any difficult situation – and I would definitely describe your situation as difficult – we have a choice to make: fret or plan. To help yourself, and to gain the best treatment possible, planning is the way to go. There are several steps that can be taken as part of your “self-protection plan.”

2. Understand that no one can help you if you don’t help yourself, and helping yourself will take some courage. Imagine asking a doctor to help save your life, but saying to that doctor “Doctor, please save my life. But understand that (a) I am a very busy person, (b) I don’t want to feel any pain or discomfort, and (c) I want to make sure that I don’t have any risks from any medicine, procedure or operation.” Do you think that would be reasonable? Of course not. Well, solving this problem at work may require dealing with fear of retaliation, and some discomfort, and dealing with some risks, as well. But not dealing with a situation like yours is likely to bring about greater problems, not less.

By the way, if you are (a) unhappy, (b) about to be fired, (c) and ready to quit, do you really have anything to lose? You know, in negotiation there is a saying, “The person with the least to lose has the most to gain.” Think about it. 

3. Consider filing a formal complaint with the state and federal employment rights agencies in your city. What you describe is (a) illegal employment discrimination, and (b) illegal retaliation for objecting to that illegal employment discrimination. Our society has decided that these problems are so important that both our states and our federal government have established agencies to help people in your situation. These agencies are generally good at what they do and most employers are concerned – sometimes even afraid – of the potential power they wield. If you file a formal complaint with one of these agencies, you will be somewhat “protected” from further abuse and retaliation because how your employer treats you afterward will be “under a microscope.”

The Wisconsin Equal Rights Division (part of the Wisconsin Department of Workforce Development) is the state agency that can help you. They have a Milwaukee office at 819 North Sixth Street, Room 723, Milwaukee, Wisconsin 53203. Their phone number is (414) 227-4384. Their website address is http://dwd.wisconsin.gov.

The Milwaukee District Office of the federal Equal Employment Opportunity Commission (“EEOC”) has an office at 310 West Wisconsin Avenue, Suite 800, Milwaukee, Wisconsin 53203-2292. Their phone number is (800) 669-4000. Their website is www.eeoc.gov/field/milwaukee.  

4. Though you are concerned about retaliation, I suggest you send a respectful email to your employer’s HR department, objecting to what is going on, and mentioning that you have been in touch with the state and federal agencies. If there is one thing that so many people don’t understand, it is that they are safer from retaliation if they complain about the retaliation, in the right way, which is always by email.

Imagine if a neighborhood bully hits you every time you see him. Is he more likely to stop if you have told the police? If you have hired a bodyguard? Either way, I think yes. That is the equivalent of standing up to an employer’s abuse, humiliation and discrimination. In my experience, it is more likely – no guarantees, though – that retaliation will not take place if you have filed both (a) complaints with your employer detailing what you have experienced, and (b) complaints with state and federal agencies, and your employer knows that you have.

We offer a Model Letter entitled “Pre-emptive Anti-Retaliation Letter to Board Chair” for this purpose that you might find helpful to say, in effect, “What the company is doing is being watched.” To obtain a copy, [click here.]

5. Speaking of “bodyguards,” you might also consider getting to know a local employment rights attorney. Contacting and having an initial consultation with a local employment rights attorney may prove helpful, on several levels: (a) you may be able to gain valuable information, as your attorney will likely have experience with local laws, in local courts, against local employers, (b) it may give you added confidence knowing you have someone “in your corner” available to you who is on your side, (c) your employer might be more reluctant to further retaliate against you if it knew you have someone on your side, and (d) if you are, indeed, further retaliated against, you would have someone available to you to take quick action to remedy the situation.   

6. If you don’t get this resolved rather quickly, I suggest you consider an “Involuntary Resignation.” As you may know, I have sort of “invented” a new concept called “involuntary resignation.” This means that you are leaving your job, not voluntarily, but “involuntarily.” By making a written email record that you have been forced to resign due to the circumstances, and that this is an “involuntary” resignation, this can preserve your right to collect unemployment insurance benefits, to later sue if you decide to do so, to get severance, and to any other legal rights that may arise – now or in the future. For you, “Tired,” this should be far better then simply resigning.

For great info and insight, consider viewing our 12-minute Sklover-On-Demand Video entitled “Involuntary Resignation.” To do so, just [click here.] 

If you would like to obtain a Model Letter that you can adapt and use to “Involuntarily Resign,” just [click here.]

“Tired,” no one can guarantee any of us that life will be easy. But, if you make a plan, follow your plan, and “stick to your guns,” life will be at least a little “less un-easy.” Standing up for yourself is never an easy thing to do, but once you get the hang of it, others can tell you are not someone they would be smart to abuse. I wish you good luck in doing so. 

My Best,
Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.

“What is the best way to get out of a bad employment relation?”

Published on November 9th, 2011 by Alan L Sklover

Question: My question is this: I feel like the writing is on the wall at my job.

I have received an email every week stating that my minimum metrics aren’t being met and that they need to improve. (I’m in sales.) I am starting to feel like I am waiting for them to fire me.

It has become a hostile situation for me and it’s affecting me mentally. Before I have a mental breakdown, how do I get them to mutually agree that this isn’t working for both parties, and that they should “let me go” out of this circumstance?

West Orange, New Jersey

Answer: Dear Al (by the way, love that name!): I get a lot of inquiries like yours. Here are my thoughts:        

1. It is more than likely that your employer is trying to get you to quit, and thus deny you both (a) severance, and (b) unemployment benefits.  I have seen this sort of thing happen so many times I couldn’t count them: both sides are afraid to be the one to say “It’s over.” Your employer’s constantly “needling” you with emails and hostility is meant to destabilize you, and to get you to quit. Please – don’t let them win in that childish game. And don’t get yourself sick about it. Instead, choose a positive, sensible course of action.

2. I suggest, first, that you put into a respectful email, to your supervisor, or your supervisor’s supervisor, that you feel (a) you are being treated in a hostile manner, (b) it is starting to affect your health, and (c) you think a frank, open discussion is preferable.   (i) This should serve to make a “record” of what you are experiencing, that you believe it is both wrong (and against company policies), and is causing health issues to you. (ii) It should also serve to “wake management up” to what is going on, so they can’t later claim “You never reported this.” (iii) Lastly, it should serve to motivate management to act a bit more like mature adults, and responsible employers, are supposed to.  

3. In your email, suggest that a fair, reasonable, and respectful departure and transition would be best for all; however make sure you say absolutely clearly, that “THIS IS NOT A RESIGNATION.” It is so much better for all if a relationship of any kind ends on a sweet, respectful and “classy” note. It is so much worse for all if a relationship of any kind ends with anger, recriminations and accusations. You might suggest that (a) a limited “notice” time be provided to you to find a new job (at no extra cost to the company), (b) the company agree not to oppose your application for unemployment benefits (at no cost to the company), (c) the company give you a positive reference letter (at no cost to the company), and (d) if you have no job when you leave, a limited severance of, say, three months (which will surely be less than legal fees would be if this became adversarial.)

4. If unsuccessful in this very reasonable and respectful approach, consider an “Involuntary Resignation.” This is something I sort of invented that many people find very useful: It is a resignation that says, “I did not resign voluntarily, but only because working here was killing my health and sanity, and you refused to stop the aggression.” It (a) preserves your legal claims if you have any, (b) will have a good chance of qualifying you for unemployment benefits, and (c) makes a record of what really happened. It is a very, very useful tool, and is often unexpected and unexpectedly effective.

We have a good video on this topic on YouTube; to view it, just [click here]. We also have a good newsletter that explains Involuntary Resignation; to read it, just [click here].

If you would like to obtain a Model “Involuntary Resignation Letter” that you can adapt to your own use, just [click here].   

Al, please try to keep your sanity; the world needs every bit of that we can preserve. I hope this is helpful, and that you make a peaceful, positive and productive transition to a job you love, and where they love you.

Thanks for writing in; please help us by telling others of our blogsite, our YouTube videos, and our Model Letters.  

Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

Involuntary Resignation – Standing Up, Not Giving Up, to an Intolerable Situation at Work

Published on December 14th, 2009 by Alan L Sklover

“Crises refine life. In them, you discover what you are.”

– Allan Knight Chalmers

ACTUAL CASE HISTORY: Jeanne enjoyed her job as Managing Director for Compliance for one of San Francisco’s largest hedge funds. She’d been in that job since the firm’s founding, some 14 years earlier. As a former SEC auditor, she surely knew her subject matter. As a former Division One lacrosse player, she was not easily intimidated.

During August and September 2008, Jeanne was called upon to sign off on certain large trades of equities in the personal accounts of senior firm executives weeks after the trades had been executed, though good governance and company policies clearly required pre-approvals, not post-approvals. Worse, Jeanne noticed what securities regulators commonly viewed to be telltale indicators of illegal trading on “insider information.” Jeanne went straight to the firm’s Head of Trading with her concerns, and need for more information.

No doubt because of the extreme volatility of world financial markets at that time, her firm’s Head of Trading was in a state of perpetual near-panic. Previously thought to be cool, calm and collected in every situation, lately he appeared preoccupied, distracted and distant. For eight days Jeanne tried to get an appointment with him, to no avail. He didn’t even return her repeated telephone calls or email messages. Finally, the Head of Trading agreed to meet with Jeanne in her office. His response to her inquiries was short and simple: “Your job is to sign off; just sign off, or look for another job.” His tone was quite serious, almost menacing: “I don’t need to answer your questions, and it would be in your interests to stop asking me to do so.” Jeanne was aghast.

The next day Jeanne went straight to her boss, the firm’s General Counsel, who Jeanne considered a close friend. The General Counsel was a member of the firm’s Board of Directors, and a close confidante of the Board Chairman. The General Counsel listened to Jeanne, and was just as brief and menacing as the Head of Trading had been: “You need to be a team player if you want to stay on the team.” Jeanne felt like she was caught in a trap: on the one hand, she had no definitive proof of improper or illegal conduct; she could not make allegations at this time. On the other hand, she was being denied the information she needed to do her job; if she approved trades that were later found to be improper, her name, reputation and career could all be in jeopardy. To compound matters, Jeanne’s diabetes became acute and unresponsive to medication, no doubt a result of her terrible stress. Then a serious complication ensued: Jeanne’s eyesight started to deteriorate.

Jeanne consulted us, seeking advice on how to resign from her job before either she was fired, or she jeopardized her career. If she stayed, she could become a criminal; if she resigned, she would lose a vast majority of her net worth: (a) almost $280,000 in unvested stock; (b) her annual bonus of $100,000; (c) three years of profit-sharing totaling $175,000; (d) deferred income of $75,000; and (e) even her right to collect unemployment insurance. This was 98% of her lifetime financial savings.

Staying in her job – and thus risking her career – did not seem like a viable option. Resigning from her job did not seem much better. We suggested to Jeanne a third option, one she had not considered: involuntary resignation. When we mentioned it to her, she seemed puzzled and perplexed. She thought that all resignations were “voluntary.” She had never heard of an “involuntary resignation.” In fact, she thought the phrase was oxymoronic. In the end, though, “involuntary resignation” turned out to be the perfect option for Jeanne, permitting her to hold intact both her own personal integrity, and her personal finances.

LESSON TO LEARN: (a) Stand Up; Don’t Give Up: Words and their meanings can be very interesting, and very revealing. My dictionary has two definitions for the word “resignation.” The first definition is “an act or statement removing oneself from an office or position.” The second definition of “resignation” is a “state of being submissive, weak, unresisting, acquiescent.” Unfortunately, most people believe the two definitions of “resignation” go hand-in-hand. That is, most people think “removing oneself from a position” is also being “submissive, weak, unresisting or acquiescent.”

However, increasingly and fortunately, “resignation” from work, and especially significantly difficult situations at work, is being undertaken not as an act of “giving up,” but rather as an action of “standing up,” and it is essential you understand the difference.

“Involuntary resignation” is not an act of saying “I voluntarily give up my position.” Rather, it is an act of saying, “I will be departing because my employer has taken my functions, and hence my job, from me.” Or, “I will be departing because my employer is forcing me to leave by telling me if I stay I must engage in criminality.” Or, “I will be departing because my employer’s actions are directly causing serious health problems for me, and so my remaining is simply not an option.” “Involuntary resignation” is not giving up, but rather standing up, in the process of departing. Or, “I am leaving, but I am being forced to leave by what is being done to me. Therefore, I should not suffer any negative consequences as a result of my resignation. Rather, I should be treated at least as favorably as an employee who is being laid off due to no fault of my own.

The purpose of an “involuntary resignation” is to depart a bad working environment without giving up potentially valuable legal rights and negotiating leverage.

(b) When is a Resignation “Involuntary?”: A resignation may be reasonably characterized as “involuntary” due to such things as severe harassment, having your primary job functions taken from you, extreme hostility, being urged to engage in (or overlook) impropriety or criminality, deleterious health effects of certain activities, and many other circumstances. The question is this: would an average, reasonable person feel it is impossible or next to impossible to remain at the employer under such circumstances? If yes, the resignation is not voluntary.

(c) The Many Benefits of “Involuntary Resignation”: The differences in how “voluntary” and “involuntary” resignation may affect you are striking:

1. Severance is generally not given to those who resign; however, to those whose resignation is “involuntary,” it may be available.

2. Employer savings and investment plans often deny the return of savings or invested monies – particularly if the employer contributed to those who “resign” before certain dates. Citing “involuntariness” in your resignation may result in full payment made to you when you depart.

3. In many company equity (stock and stock option) plans, if you resign, you forfeit unvested shares and options. However, submitting an “involuntary” resignation can sometimes prevent such losses.

4. Many non-competition agreements are triggered by “voluntary” resignation; “involuntary” resignation may be a way to avoid such a restriction.

5. In most states, “voluntary” resignation will deny you unemployment insurance benefits. However, if you had a good reason for leaving – what we refer to as an “involuntary” resignation – you can often still receive unemployment benefits.

6. Sometimes employers give or loan employees monies – for such purpose as education, moving, buying company stock, or as “sign-on” bonuses, but require immediate repayment by employees who “resign” before a specified period of time. However, an “involuntary” resignation may obviate such repayment obligations.

7. When an employee “resigns” it is generally presumed that he or she left on his or her own volition. However, “involuntary resignation” is more in the nature of a “termination by the employer without the employee having caused it,” and may preserve important firing-related claims, including harassment, hostility, and contract breach.

(d) You Have Nothing to Lose: Don’t let HR or Senior Management tell you there is no such thing as “involuntary resignation.” They know full well that the concept is a valid one. “Involuntary resignation” is the exact same concept as “Resignation for Good Reason” found in a majority of “C-suite” (chief executive officer, chief financial officer, etc.) employment contracts. Senior executives who resign for “Good Reasons,” which include loss of authority, diminution of compensation, or other “involuntary” losses, are generally entitled to departure on a preferential basis, including better severance terms, accelerated vesting of equity, and cancellation of non-competition restrictions.

The lesson is this: If you find yourself in difficult circumstances such as the ones noted above, and are contemplating departing your job essentially “involuntarily” as a result, give thought and consideration to an “involuntary” resignation instead of the other submissive, weak, unresisting or acquiescent kind.

WHAT YOU CAN DO: If you think you have a good basis for an “involuntary resignation,” bear these points in mind:

Read the rest of this blog post »

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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