Accelerated Resignations

As I’ve written before, “termination” means “end,” and the employment relationship ends in a situation where the employee voluntarily resigns. So, one word that accurately describes a situation when an employee voluntarily resigns from a job is “termination.” The employee in that situation might be confused and say, “No, I resigned, I wasn’t terminated.” When you resigned, Employee, you terminated the employment relationship, so it’s accurate to say the employment is “terminated.”

Another situation that sometimes happens is the employee resigns, but that is not something the employee would otherwise have done except for a bad action (or more often, a series of bad actions) by the employer. If a reasonable person in that employee’s situation would look at the overall circumstances and events, and conclude that they had no better option than quitting a job which, absent those bad actions, they would have kept, that is what’s called a “constructive termination.” The law treats this as an employer-initiated termination, not a voluntary resignation. But it’s still a “termination,” because the employment relationship ends.

Still another situation is one in which the employer overtly or explicitly ends the employment relationship: the employer fires the employee. This, too, is a “termination.”

In a serendipity of many different situations that have come to my attention recently, a scenario that looks like this has come up:

01 March 2023: Employee tenders a resignation, effective on 31 March 2023. Employee feels good about having treated Employer fairly by giving more than four weeks’ notice.

02 March 2023: Employer shuts off employee’s access to the computer network, prepares a paycheck for the equivalent of two days’ work, denies the employee access to the workplace, and delivers the employee a box purporting to contain the employee’s personal effects taken from what was the employee’s desk, and then circulates an email to the other employees that says “[This person] is no longer employed by us and is not authorized to be on the premises. Please join us in wishing [this person] good luck in their future endeavors.”

03 March 2023: Employee calls HR, call is not returned.

04 March 2023: Employee contacts Gunderson Employment Law, asking “Can you find out if I still have a job?” [The answer: “No, you don’t.”]

What just happened? The (former) Employee believed they had a job through the end of the month and was probably relying on the remaining month’s worth of income to be earned while wrapping things up on their way out. Instead, they get two days’ worth of pay instead of an entire month’s, and they feel rather rudely treated to boot.

“Employment at will” means the employment relationship persists until at least one of the two parties to the relationship wants that relationship to end. In the example above, Employee wanted the relationship to end on 31 March 2023. But the relationship ended on 02 March 2023, and it was Employer, not Employee, who made it so.

So what’s happened here is that Employer has fired Employee. Employee’s resignation is almost certainly a cause for the firing, but it never got a chance to take effect. The Employer took action of its own to terminate the employment relationship before the date that the Employee would have terminated it. That’s an employer-initiated termination — a firing. The resignation is moot, at least for purposes of determining who ended the relationship.

In my line of work, the next question is “Why did Employer do that?” After all, there might be good reason for it. This sort of scenario happens quite a lot with workers who handle sensitive or proprietary information, with the most common category of such proprietary information (I should say “purportedly” proprietary information) being sales relationships with critically important customers. Other times, it’s a fit of pique by a superior who is insulted at the employee’s action.

But sometimes, there are facts that suggest that the employer is retaliating against the employee for doing something that the resignation is part of. It might be something like internally reporting on what’s reasonably suspected to be the employer’s violation of the law and frustration with the employer’s refusal to respond to those complaints. Sometimes the employee is correct to suspect a violation of law, and sometimes not. Or, it might be an attempt to punish the employee for something they did, or an attempt to send a signal to the remaining employees about something the now-fired employee did.

So sometimes, this sort of scenario can be considered a wrongful termination. And sometimes, it’s an employer treating the employee badly but not so badly as to violate the law. It’s something that I want to hear about in detail and make evaluations of on a case-by-case basis. If this is what’s happened to you, and you think there was something wrongful about it, I’d encourage you to set up an appointment so we can talk about it in greater detail.

But one thing is clear in my mind: if the employee turns in a resignation that is to be effective on date X, and the employer then ends the professional relationship on a date before date X, that’s an employer-initiated termination. The employee has been fired: this is not a voluntary resignation.