Friday, August 16, 2013

Reservations about Resignations

New ImageThe Chronicle of Higher Education recently ran a story about a professor at VMI who announced that he intended to resign his position. The dean of faculty  responded that, “although the procedure you have followed does not strictly conform to the guidelines published in VMI’s Faculty Handbook or Regulations, we accept your resignation.” The professor, Kurt J. Ayau,  immediately protested, but the events left his status at VMI unclear. What is pretty clear is that his employer put Ayau in the uncomfortable position of having to backtrack -- which may have been its purpose. In the end, the professor accepted a paid leave, which will give him a chance to look for employment elsewhere. So it's kind of hard to tell who came out on top.

As one of the commenters at the Chronicle suggested, VMI would have been on pretty tenuous ground if it tried to push the “resignation” since Ayau not only failed to tender a written resignation but didn’t even announce that he was resigning; he merely stated his intent to do so. 

But the case got me thinking about the law of resignations. Even formal resignations can be rescinded in extreme circumstances. Some of you may remember Odorizzi v. Bloomfield School Dist., where a school teacher had a signed resignation invalidated for undue influence – “multiple persuaders” took advantage of plaintiff’s exhaustion and mental turmoil after being arrested for homosexual conduct to extract his resignation. And, of course, the constructive discharge doctrine can be viewed as another way in which a formal resignation might lose its normal legal effects.

But there’s certainly nothing in "normal" contract law that would require any degree of formality for mutual agreement to terminate a contract – which is what a resignation, if accepted, is. There doesn’t seem to be much law on what is necessary to make a resignation into an offer that can be accepted.  This makes sense, of course: in a mostly at will world, either side can walk away by virtue of a mere announcement. But Professor Ayau presumably had tenure, and there are millions of employees working in academic institutions, el-hi, civil service, unions, and under individual contracts where the issue is a real one. To quote an old country song, does Johnny Paycheck’s “Take this job and shove it I ain’t working here no more”  constitute an offer that the employer in such cases can accept?  (For those country music fans, if any on this blog, I realize that Johnny was merely fantasizing about what he wished he had the “guts to say”).

 One instructive case is Mahoney v. Board of Trustees, 214 Cal.Rptr. 370 (Cal. App. 1985), where the court refused to honor a telephone message resigning because the community college  was "equitably estopped" by its formal written resignation procedures, upon which the plaintiff had supposedly relied. That might well have been the outcome had the VMI situation been litigated.

In this kind of case, the issue is whether a resignation should be viewed as an offer to rescind a contract, which can then be accepted by the employer. But a resignation can also be viewed as a repudiation of a contract, especially if it is coupled with failure of the employee to perform. Indeed, unjustified failure to show up to work is sometimes described as constructive resignation.  The notion of repudiation triggers yet other contract doctrines, under which it's generally held that the act of repudiation must be unequivocal, see Bennet v. Sage Payment Solutions, Inc., 710 S.E.2d 736 (Va. 2011), and it may be that there is more room for argument in this regard about the formality of the resignation. 

While all may have ended well for Professor Ayau, the lesson from this kerfuffle is that employees have to be careful what they say in the course of griping about their jobs.


Thanks to Teliza Adams, Seton Hall class of 2015, for her help with this.

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I would also add that, particularly at universities and other large employers, the legal doctrines may take a back seat to HR bureaucracy. When I changed schools a couple of years ago, my new school's academic year had a starting date that was one month earlier than my old school. It shouldn't have mattered, as I was on a 9-month contract (spread out over 12 months' pay) and would have completed all of my duties by the earlier quit date. However, my old school's central HR office informed me that I could not quit until the date that they set and, if I left early, I would not be entitled to the remainder of my already earned pay. I lost count of the number of times I told them that I could quit whenever I wanted and they had to pay me what I already earned--and still got the same answer. It took going high up the food chain and a ridiculous set of administrative machinations to accomplish the proper result. The officials I dealt with weren't acting with ill will--they just weren't used to something different than their norm--but, I kept thinking of the irony that this was occurring in Tennessee, which is proudly one of the first and strongest supporters of the at-will doctrine.

Posted by: Jeff Hirsch | Aug 16, 2013 6:23:46 AM

I guess they really wanted to keep you, Jeff!

Posted by: CAS | Aug 17, 2013 3:28:21 AM

As a country music fan, I would like to comment on your interpretation of Johnny Paycheck's song. To be sure, he was fantasizing about what he would like to tell his boss. But I don't think it wasn't simply because he hated his job. After all, as the song goes: "My woman done left and took all the reason I was working for." I've always thought that the song was misunderstood, and that it's as much a classic "love sick blues" and not just a "I hate my job" song.

Posted by: Tom Gies | Aug 17, 2013 10:47:51 AM

Interesting post. In Ohio, most civil service employees are subject to statutory/administrative provisions governing resignations, unless modified by union contract. These provisions create a fairly exacting standard for what constitutes an effective resignation, in part by allowing retraction prior to acceptance and setting the bar pretty high for what constitutes legally-effective acceptance. That said, my recollection is that the courts have been chipping away at some earlier, more pro-employee decisions interpreting these provisions.

Posted by: John | Aug 18, 2013 8:23:36 AM

Greetings, one and all. I find myself the subject, in part, of an article on a legal blog. A first for me. If y'all have any questions, please ask away.

Posted by: Kurt Ayau | Aug 27, 2013 11:52:49 PM

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