An employee may think the grass is greener in a new job on the other side of the fence. Once in the new position, however, he may start longing for the good old days in his old job. What to do with such an employee can put an employer in a quandary.
Recently, a group of attorneys were asked how to handle a former office manager turned sales person who says he is no longer interested in doing sales. He refuses to complete tasks that everyone else on the sales team does, and he says he wants to move back to his old job. But that position has been filled, and the employer wanted to know if the employee’s actions could be considered a resignation.
The attorneys’ answer: not really.
Get to work or hit the road
“It is not a resignation in the strict sense,” Peyton S. Irby, Jr., special counsel in the Jones Walker law office in Jackson, Mississippi, says. “However, it is an employee who is no longer interested in doing his job. The fact that he wants a job that isn’t available offers him no protection from being terminated.”
Mark Adams, a partner in the Jones Walker New Orleans office, says absent a collective bargaining agreement spelling out “bumping rights,” the employer has the right to decide which job the employee will perform. “If he refuses to do the job you gave him and there’s no medical or physical issue that would require you to consider a reasonable accommodation under the Americans with Disabilities Act (ADA), his behavior is insubordination,” he says. “Tell the employee you don’t have another position for him and he doesn’t get to decide which job he’ll do anyway, so he needs to get back to work or hit the road.”
Mark M. Schorr, senior partner in the Lincoln, Nebraska, office of Erickson & Sederstrom, P.C., says as long as the employee is coming to work and performing some duties, he hasn’t resigned. “Instead, it’s more of a discipline issue. If he is not performing the required duties of the sales position, you need to handle the situation under your disciplinary policies.”
Schorr suggests informing the employee that the office manager job isn’t available and spelling out the required duties of the sales position. “In short, although the employee hasn’t resigned, he needs to understand that there are three potential outcomes going forward. He can begin performing the required duties of his position, resign, or be terminated,” he says.
Contractual obligations?
Reggie Gay, a shareholder with McNair Law Firm in Anderson, South Carolina, points out that if the employee is working under an employment contract, the employer must comply with its terms. But without a contract, depending on state law, employment will be at will. “We caution employers not to use the employment-at-will doctrine as the reason for terminating the employment relationship, however; instead, you can use it as a defense if an employee claims he was wrongfully terminated. You should always use a legitimate nondiscriminatory business reason as the basis for a termination,” he says.
Gay suggests telling the employee his former job has been filled and there’s no similar position available. “Be sure he understands your expectations of him in the sales position, and document the meeting. The documentation should include a statement that you reviewed the duties and responsibilities of the salesperson with him and informed him that his failure to meet expectations may result in discipline, up to and including termination.”
Job abandonment?
If the employee isn’t coming to work, the employer may be appropriate in firing him for job abandonment. “Often, employers have policies saying that an employee’s failure to report to work for three consecutive days is considered job abandonment and will be treated as a resignation,” Gay says. An employer with such a policy can probably follow that policy and treat the employee’s actions as a resignation.
If the employee is terminated for job abandonment, insubordination, or any other reason, documentation is vital. “To avoid potential liability for discrimination or wrongful termination claims, you should always document an employee’s refusal to work or follow instructions,” Gay says. “Such misconduct is serious and should be dealt with promptly. You shouldn’t allow the situation to drag out. Remember that you, as the employer, are in control, and the employee doesn’t dictate his job duties. Simply put, if he refuses to do his job, he should be separated from his employment.”