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When is a Resignation a Dismissal?

The short answer is when the State of Oregon says so. At least, that is what the Oregon Employment Division and the Bureau of Labor and Industries seem to want you to believe.

It is easy to envision a situation where an employee announces they are quitting in two weeks (or some other period of time) and their boss tells them "fine, if you don't want to be here, then go home now" or something to that effect.

It may be that the resignation came as a complete surprise and was perceived as an act of disloyalty. It could be the employee has access to confidential information and the employer wants to prevent the soon to depart employee from having further access to that information. In other situations, it could be the employee has been a problem, it is good to see them go and the employer seeks to hasten their departure.

Last week, a client told me an employee had announced he was quitting and refused to continue to perform an essential function of the employee's job. The employer told the employee to leave right then. The former employee then applied for unemployment.

Slam dunk case, right? The employee quit. The employee refused to perform his job. Unemployment denied? Not so fast. At least, that is what the State of Oregon said when granting the employee's claim for unemployment.

According to the State, since the employer did not allow the employee to quit on the employee's terms, the termination was a dismissal, not a resignation.

Obviously, this is a bad decision by the State. If the employer had contacted me at the time of the employee's announcement, rather than after the State's ruling, the result probably would have been different. The employer is going to appeal and, with proper counsel, this decision should be reversed.

Lessons you can take away from this employer's misfortune include:

DO: Do use a written job description to clearly define the essential functions of each and every employee's position.

We have a job description guide that can help you defend meritless employment claims. The guide can also help you communicate your expectations to your employees so that your jobs are performed effectively and efficiently.

DO: Do count to 10 after an employee announces a surprise resignation before taking action. Better yet, say little if anything at first, think about the situation and get back to the employee with a well-reasoned response.

DO: Do conduct an exit interview with departing employees. During the interview, ask for the reason they are leaving and document that reason. This will be discussed in more detail in Part 2.

We have a guide you can use to make sure the right topics are discussed and that the discussion is properly documented.

DO: Do consult a lawyer experienced in employment matters if you want to end the service of a resigning employee before the notice they give expires.

There are strategies you can use to preserve confidential information if that is an issue. There are other strategies you can use when the resigning employee is not performing his or her job effectively. An experienced employment attorney can help you avoid problems suffered by the employer described above. The small cost of a consultation can be substantially less than fighting Employment Division or BOLI rulings.

DON'T: Don't make a rash decision. Think it through. Consult with legal counsel when appropriate and take thoughtful, strategic action.

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