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What Do You Do When an Employee Resigns, Then Asks to Stay?

If an employee resigns, then rescinds the request, the employer has a choice: Do they want the worker to stay or go?

If the employer determines they want the employee to stay, they should find out why the worker wanted to resign. However, if the worker is a poor performer, the employer may expedite their departure instead.

Employers often are reluctant to let employees reverse course and stay after resigning unless the workers are truly exceptional, said David Baffa, an attorney with Seyfarth in Chicago. “Most people and most employers figure that if someone quit once, they’ll quit again, and often, they do,” he explained.

When the Employer Wants to Retain the Worker Reversing Course

That said, the reason an employee wanted to resign could be one that isn’t based on working conditions. One example would be if the employee’s spouse was supposed to be transferred by the military and then the orders changed, said Amy Casciotti, vice president of human resources at TechSmith Corp., a software company in East Lansing, Mich. In this circumstance, “the employee was not resigning because they wanted to leave but rather had to,” she noted.

If the employer wants to retain the worker reversing course, it should remember that frequently, a combination of factors led to the employee’s decision to quit, said Christine Walters, SHRM-SCP, an HR consultant with FiveL Company in Westminster, Md.

She recommended asking the employee follow-up questions about what the organization could do to keep valued workers who are on the fence about leaving. “If the answer is related to compensation, ask them what else you could do to provide the opportunities they seek or provide what they need,” Walters said. “If you don’t know the employee’s professional aspirations, ask what they are.”

The employer might ask what the employee wants to be different, Casciotti said. The organization should consider if it can provide that for the employee now or if there is a path to providing that. “Understand what the employee needs to be re-engaged and with the company,” Casciotti said. “Help them to understand where they fit into the organization, why what they do is important and why they matter to the organization. Ensure you are checking in with them and making sure they have meaningful work.”

An employee might resign because they don’t feel valued or challenged, said Amy Kullik, an attorney with Fisher Phillips in Cleveland. “Once an employer can understand the motivation leading to the resignation, it can take steps to address those issues and encourage the employee to stay on board, or otherwise learn from any mistakes to avoid losing a valued employee next time,” she said.

But be warned: If the job is no longer vacant, allowing the employee to revoke the resignation could have legal implications in relation to the new hire, cautioned Tim Garrett, an attorney with Bass, Berry & Sims in Nashville, Tenn. These include possible “promissory estoppel,” especially if the new hire has notified their current employer or taken steps to relocate, he explained.

Sometimes an employer wants an employee to reconsider their resignation as soon as it’s submitted. If that’s the case, don’t immediately accept the resignation or publicly communicate about it, said Tom Scroggins, an attorney with Burr & Forman in Birmingham, Ala. Talk with the employee to find out what’s motivating the intent to resign and see if the relationship can be salvaged through some reasonable adjustments. If so, make the adjustments and move on, he said.

However, if the issues leading the employee to resign aren’t resolved to the employee’s satisfaction, it may only be a matter of time before the employee resigns again, said Nicole Truso, an attorney with Faegre Drinker in Minneapolis.

Employees Who Resign Amid Performance Issues

Often, the employee who is resigning and then asking to stay isn’t a top performer, but instead is having performance issues, Garrett said. “In this instance, the company can choose to disallow the employee’s attempted revocation, even if the job is vacant,” he said.

The employer is free to say, “You know what, no thanks—you resigned and we accepted it, and your last day is X,” Baffa said. “That is almost entirely risk-free,” other than the rare possibility of a discrimination claim.

Some employees believe they can set their own termination date when they resign. “They can’t,” Baffa said. “The employer is generally free to set the date, subject only to a theoretical discrimination claim, which could only really take root if you were treating similarly situated resignees in a dissimilar way,” which he said was “rare and unlikely.”

When an Employee Claims a Hostile Work Environment

Employers should tread carefully if an employee’s stated reason for resignation was that they were subjected to a hostile work environment, Baffa said. The same is true if they claimed they had a disability. In these contexts, refusing to allow the worker to change their mind could be construed as retaliation for the complaint or for making the decision based on the employee’s disability, he added.

Allowing the employee to rescind a resignation when there’s a claim of hostile work environment reduces the risk of a “constructive discharge” claim, said Richard Greenberg, an attorney with Jackson Lewis in New York City. Constructive discharge happens when a workplace is so hostile or intolerable that an employee has no choice but to resign.

“If the employee resigned as a result of a toxic work environment or because of a hostile environment or other circumstance that could lead to a claim of constructive discharge, it is important that the employer understand what happened and take steps to ensure that the situation is remedied,” Kullik said.

The employer likely will have to investigate the concerns raised, even if they are being raised for the first time in the resignation notice, Garrett said. The employer should inform the employee that the concerns will be looked into and explain that, if those concerns are the only reason for the resignation, the employer will consider the employee on leave pending the employer’s investigation, he recommended.

reposted with permission from SHRM 11.2023

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