Avoiding Employment Lawsuits–Part IV

OK, so I’ve considered the manner in which an employee is discharged, the role of unemployment compensation in employee discharges, and the use of separation agreements as a way to avoid employment lawsuits.  Let’s conclude by taking a brief look at how an employee’s resignation may help avoid an employment lawsuit.

When firing an employee, should you offer him or her the opportunity to resign?  After all, some employees would rather resign than be fired so that their employment record won’t show an involuntary discharge.  Therefore, offering an employee the opportunity to resign may make the termination easier to swallow.  If the employee does wish to resign, she should sign a simple statement of resignation.  (If a separation agreement is used, as discussed in the previous post on this subject, the agreement will ordinarily include a statement of resignation.)

Keep in mind, however, that if an employee decides to resign instead of being fired and then sues you anyway, the resignation won’t necessarily result in a defense to the lawsuit.  A forced resignation is sometimes called a “constructive discharge,” which is, in the eyes of the law, the same thing as an outright firing.  So, you could still be sued.  As a practical matter, however, a resignation may very well have the effect of pushing the employee toward getting another job instead of filing a lawsuit.

Again, it would be great to hear your thoughts on giving an employee the chance to resign before you pull the termination trigger.  It would also be great to hear your thoughts on additional ways to avoid employment lawsuits.  I’m sure that all of us would like to make that a New Year’s resolution and would like as much help as possible in keeping that resolution.