Jennifer Kearns, an attorney with Brobeck Phleger & Harrison LLP in San Diego who specializes in employment law, notes there's no need to force an employee to quit, because most states presume an at-will relationship unless otherwise agreed. However, she adds, it's important to cement the at-will relationship early on, particularly in employee-friendly states such as California, where courts are willing to consider 10 years of bonuses, awards and promotions as evidence of an implied promise of continued employment (unless there's a downturn in the company or the employee does something seriously wrong).
"If there's no formalization of the at-will relationship, that sort of case might go to a jury," Kearns says. She advises having employees countersign letters acknowledging that you make no promise of continued employment, may alter job duties at any time, and may terminate the relationship for any reason as a condition of employment.
There's more you can do to avoid constructive-discharge lawsuits--or win one if you do get sued. "I see these claims more and more, as employees and attorneys latch on to the concept that you can quit and still sue," Ossip says. Some suggestions from the experts:
- If you get wind that an employee considers working conditions intolerable, find out what he or she finds unacceptable and discuss possible solutions.
- When an employee says there's a safety or environmental regulation being violated, investigate and resolve the situation. Do not take action against the employee because of the complaint.
- Be consistent with your own policies and guidelines.
- Keep good records so you can document why you decided to reassign job duties or territories, promote one employee rather than another, and so forth.
- If an employee quits and then alleges mistreatment, send a letter saying he or she was welcome to stay and wasn't discharged. "It may help you build a case," Ossip says.
Most steps you'd take to reduce constructive-discharge claims come down to good communication, observes Joseph Yamin, a business lawyer with Beier Howlett in Bloomfield Hills, Michigan. Your goal as an employer is to have productive employees, so good communication can only help your business.
Beier Howlett, (248) 645-9400, firstname.lastname@example.org
Brobeck Phleger & Harrison LLP, http://www.brobeck.com
Morgan, Lewis & Bockius LLP, http://www.mlb.com
Proskauer Rose LLP, (212) 969-3022, email@example.com