There are many times that employees want to quit and think that they will have a legal claim against the employer when they do. But, our employment attorneys strongly recommend consulting an attorney before taking any action, especially since we offer free initial consultations. There are many reasons why.
First, employees may or may not have the claim that they have. They may have a different claim. They may have no claim (and thus, decide to keep the job until they find a new one).
Second, there may be important things or events to document before separating from employment. While complaints may have been made verbally in the past regarding discrimination, harassment or other unlawful conduct, it may be necessary to craft a written notice. Our employment lawyers can help the employee identify what contact should or must be included in any complaints to an employer.
Third, it may be easier to get statements from witnesses while still employed. Many co-workers chose to talk to separated employees about problems with the employer after there has been a separation, especially if a claim or law suit has been asserted. Confirming the positions or observations of co-workers when they are being free and honest is much easier before than after quitting – even if it is simply by email.
Lastly, quitting or resigning does not always equal a constructive discharge. The constructive discharge doctrine requires an employee to show that “the employer’s actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign.” Mauzy v. Kelly Services, Inc., 75 Ohio St. 3d 578 (1996). In essence, for there to be a constructive discharge, the employee must show that the employer has forced the employee to sever the employment relationship involuntarily.
A good example of how that last issue can go wrong for the employee just occurred in Bilqis Miles v. Nashville Electric Service, (6th Cir. May 9, 2013). In that case, Miles suffered a psychotic break and need to be hospitalized. As a result, Miles took medical leave under the Family Medical Leave Act (“FMLA”). The day after returning to NES from her medical leave, Miles informed her supervisor that she would not be coming back to work. NES requested and Miles submitted a resignation letter. The resignation letter stated: “I am resigning from Nashville Electric Service as of 5/6/11. Thanks, Bilqis E. Miles.” Additionally, Miles testified that she wrote the resignation letter because she no longer wanted to work at NES.
Miles stated that in hindsight, she “probably could have used more time off” relating to her mental health issues. This is when consulting an attorney would have helped her determine her options.
Three days after resigning, Miles asked to return to work and rescind the resignation. NES declined and Miles filed an FMLA lawsuit. Both the trial and appellate courts found that “all of the evidence indicates that Miles communicated to Buri that she wanted to resign–not take more medical leave–and that she came to this decision absent any coercion. … NES did not have a duty to inquire further as to whether Miles was requesting leave for a potentially FMLA-qualifying reason. This is because Miles’s statements to Buri were not reasonably adequate to apprise the employer of the employee’s request to take leave for a serious health condition that rendered her unable to perform her job.” The appellate court further held: “the FMLA does not place a duty on an employer to permit rescission of an employee’s voluntary resignation.”
Miles could have avoided many of her problems by seeking legal representation before resigning. She could have been informed of any further leave rights that she may have. She could have found out that NES would or would not have accommodated such a request for leave, and if not, what claims she might have and how to document them.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. the Spitz law firm is dedicated to protecting employees’ rights and solving employment disputes.
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