At first, you think you’re imagining things. Your employee, “Kevin,” seems to want you to fire him.
It started with Kevin not showing up for two critical team meetings in a row. When you sent him a text asking, “what happened” after the first, he responded, “It wasn’t on my radar.” You sent him an individual meeting request to ask him about this, but he was a “no show.” You planned to ask him to stay after the second team meeting, but he didn’t show up.
In the meantime, your office manager handed you notes she received from two customers, saying they planned to seek a new vendor because of Kevin’s lackadaisical attitude. When she delivered these, she added, “He treats me with total disrespect. Maybe it’s that I’m a woman, or Hispanic, but I don’t plan to take it anymore.”
This cascade of problems tells you need to act quickly. It would be different if Kevin produced good work, but his formerly mediocre work reached a new low in recent weeks.
You’ve never confronted a similar problem, but other employers have—with employees who eye a different goal, wanting their employers to terminate them, and actively working toward that goal. In Kevin’s case and because he’s only worked for you for six months, he’d have to pay $38K in moving costs and half his signing bonus if he resigns before the end of the year, but not if you fire him.
A similar situation happened to one of my clients, which is where I learned about “constructive resignation” when researching how to help them. The board of a small corporation had been impressed by a CEO candidate recommended to them by a search firm. The search firm’s report, and the candidate’s background and interest in helping them meet their vision, led them to offer him a job.
The candidate insisted on a three-year commitment, saying he need the assurance that if Board membership changed, he’d not have to worry about his job. Things went well for the first six months, which is when the search firm’s guarantee ended. Then, the Board learned the candidate spent most of his time working remotely, and when on-site rudely treated their other staff. Worse, he didn’t produce results.
After a year, they’d had enough. When they told him they wanted him to leave, he reminded them they had to pay him the remaining two years under his contract.
The answer to the dilemma Kevin’s employer and the Board faced may lie in the legal doctrine of “constructive resignation.” According to attorney Brit Weimer, senior partner at Weimer & Weeding PLLC, constructive resignation is the flip side of constructive discharge. Constructive discharge occurs when an employee resigns because an employer made the employee’s work life intolerable. “A constructive resignation occurs,” says Weimer, “where, to obtain a benefit conditional on being discharged, such as severance pay or a contractual agreement, an employee engages in conduct intended to force the employer to fire the employee.”
Weimer cites Joy v. Hay Group, Inc., in which the court said concerning the plaintiff ex-employee, “Of course if she were fired because she embezzled funds… or refused to show up for work or played video games on her office computer for hours at a time, [the employer] would have no obligation to give her severance pay. Any of those examples would be a case of ‘constructive resignation’.”
In addition to situations involving repayments of signing bonuses or contractual agreements, employers may experience “constructive resignation” in cases where terminated employees seek speedy unemployment compensation. In most states, unemployment claims normally require “a separation from work in which the employer’s action resulted in the separation; in which the worker did not have the choice of remaining employed regardless of efforts to preserve employment.”
As in other lawsuits, documentation is key if an employer wants to prevail. Says Weimer, “The employer needs to specifically document what the employee did to force the discharge and the business reasons that led the employer to terminate the employee.”
Finally, attorney Weimer is arguing at least one “constructive resignation” case and predicts the “quiet quitting” trend will generate more cases in which employers need to argue “constructive resignation.”
Managers that want to avoid hiring game-playing employees, set up clear, clean systems of accountability, and retain solid employees will find valuable strategies in Managing for Accountability: A Business Leader’s Toolbox,https://amzn.to/3IKB0Yw. Here’s a sneak preview https://bit.ly/3yWRI0l and a 70-second video on accountability for employees.
(c) 2022 Lynne Curry
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