Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you've become an expendable number at work. There are robust laws that may protect you, but unlike the company, you've not been drilled on how to wield them. You're playing catch up. There are pitfalls to avoid, and counter measures to deploy that may save your job, or put you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you've been targeted at work. Knowledge is power. Let's get started.
Robert Ingalls: 00:45 Welcome back to episode three of The Walking Papers podcast. I am here with attorney Josh Van Kampen, and today we are doing episode three, Take This Job and Shove It, How Resigning Will Make Your Discriminatory Employer Do a Celebratory Back flip. Josh, where are you coming up with these titles? These are fantastic.
Josh Van Kampen: 01:08 Well, back when I was little, Take This Job and Shove It, I ain't working here no more was one of my favorite songs. Actually that's not true at all. We're just trying to be funny with the title. But on a serious note, whether or not to resign at work when a person's being targeted with discrimination or retaliation is one of the most critical decision points in a case. And it is not an understatement to suggest that discriminatory managers, CEOs, etc, will be high fiving each other when they have someone that they've been targeting resign from work. I mean I can't tell you how many times someone will arrive in my office with some actually pretty good evidence of discrimination or harassment, and I'll be also high fiving my staff and saying we've got a good one here, until I find out that, yeah, and they resigned. And that doesn't mean that we can't prevail in a case, but the job just got a whole lot harder. What I hope in this podcast we're able to do is to walk people through the pros and cons of resigning at work when you're under the gun.
Robert Ingalls: 02:16 In a wrongful termination case, how hard is it to prove discrimination?
Josh Van Kampen: 02:20 Well, it's pretty hard. There's a reason why when you look online for a personal injury attorney, you can find five hundred in your city, and you look for an employment lawyer, plaintiff side one, and you find five. It's because it's a heavy lift, and most lawyers will gravitate to another area of the law where it's easier to make a living. And the reason for that is we're having to prove intent, and so the court's expectation, the jury's expectation, is that we will prove what was in a decision-maker's minds head as they were deciding whether or not someone should be terminated or demoted. And newsflash, they don't admit that they had a discriminatory intent, and so oftentimes you're pulling pieces of evidence wherever you can find it, and balling it together to prove intent. It's a hard thing to do to begin with.
Robert Ingalls: 03:11 Right. What you're saying is don't resign.
Josh Van Kampen: 03:15 Well, the problem is if you resign, you now have introduced a hurdle before you even get to proving intent, and that hurdle to convince the court that the court should treat your resignation as if you've been terminated. The general assumption is that when somebody has resigned, they're doing so voluntarily. In a situation where somebody has voluntarily resigned, you can't go into a courthouse and say that you've been wrongfully terminated. What we have to do is prove to the court that they should treat this resignation as if it was a termination. The problem is that where you've resigned, you've essentially dug yourself a hole to get out of, and we're already dealing with a pretty high wall to get over in proving discriminatory intent, and when you've dug yourself a hole of now trying to convince a court that they should treat a resignation as a termination, you're having to do it like a double axle. And a single axle's hard enough to do as it is.
Robert Ingalls: 04:14 First question, is that something that you can prove, and if so, how?
Josh Van Kampen: 04:18 Yeah. Well, the legal term for it is constructive discharge, and the test for it is pretty straight forward. You have to establish that your working conditions were so intolerable, and that intolerable word is the key word in this.
Robert Ingalls: 04:35 Can you give us any situations? Is this like sweatshop labor, or-
Josh Van Kampen: 04:38 Well, intolerable is an objective standard, so if you want to picture your middle of the road independent voting neighbor on the cul-de-sac, that's the reasonable person's standard, and would that person under those circumstances resign because the conditions were so intolerable. It's not enough just to be, "Ah, geez, it's inconvenient." Or "I'm not happy at work." The members of the jury have to determine that the situation was intolerable.
Robert Ingalls: 05:07 If discrimination does in fact exist, but you quit your job, and thus you are stuck having to prove constructive discharge. Even if you might have a good discrimination claim, can that constructive discharge claim if you don't prevail on it, can that kind of destroy your case?
Josh Van Kampen: 05:27 If you can't prove to the court that your conditions were intolerable, the court will never even examine whether or not you were discriminated against because you bowed out. Understand that the court's expectation is that where you're being discriminated against at work or harassed, you're expected to stay and fight. And eventually you'll be terminated, and then you can sue for wrongful termination, but if you bow out voluntarily, then oftentimes the court's not going to get involved.
Robert Ingalls: 05:55 Right. And is the onus on you to prove that?
Josh Van Kampen: 05:57 Yeah, and again, you already have to prove discriminatory motive, and then yes, you have to prove that the conditions were intolerable. Going back to the objective standard, it doesn't have to be Gandhi, or Nelson Mandela's version of intolerable. I mean obviously for those two men, their fortitude and their threshold for pain was incredible. It's not that. It's your reasonable independent neighbors tolerance for being able to remain at work.
Robert Ingalls: 06:28 We talked about that a little, and I said sweatshop earlier a little more tongue in cheek, but what are some real life examples of an intolerable working environment that may support a constructive discharge claim?
Josh Van Kampen: 06:41 Oftentimes, proving intolerable working conditions involves a cocktail of various different ingredients. To hit that threshold. It's rarely one particular thing. You know, one critical component is if you have a supervisor or manager who has suggested to an employee that he resign. Most people on the cul-de-sac if you've got your manager saying you really ought to resign, not necessarily everybody's going to resign in that instance, but some people will. That's a really good fact to have.
Josh Van Kampen: 07:13 Another thing is a reduction in work hours or compensation. If your employer is, like we talked about, reduced your hours, or all of a sudden you're not getting overtime anymore, you're denied a raise, and you're having a hard time making ends meat, a reasonable person in that sort of situation may bow out because they can't afford to support their family on that amount of money.
Josh Van Kampen: 07:39 Another factor to consider is, and that we see a lot, is that employers will essentially excavate or hollow out the job responsibilities that the plaintiff has, so much so that you go to work and you're essentially twiddling your thumbs and wondering why you are you there is another good fact to be able to point to.
Josh Van Kampen: 08:00 And then in the harassment context, obviously if you're dealing with a situation involving physical threats of violence, or threats of violence, actual acts of violence, active egregious daily sexual harassment, those things can sort of fast track a case for intolerable working conditions. But as a general rule, my advice to folks would be the longer that you can stick it out, the better. And you know everybody reaches their breaking point at some point, but usually the employer will reach the breaking point first and act to terminate, but where you have an employee who has reached his breaking point, there are other options other than resignation, like taking a medical leave, for example, and regrouping.
Robert Ingalls: 08:48 I know every situation is going to be kind of specific to that person, but are there any circumstances or examples that are just not constructive discharge that someone might think, "Well, this happened to me, and I think that this probably rises to the level." Or are there any that you see frequently that just are not?
Josh Van Kampen: 09:06 A lot of it if it's something that's a reassignment say to a different job. Your pay hasn't been decreased. It's more of a lateral transfer. You still have substantive responsibilities, but they're different, that's not going to be considered intolerable, for example. Your boss used to take you to lunch every Friday with all the whole rest of the team, and then you complain to HR, and now all of a sudden everybody else goes to lunch, but you're not invited, I might throw that on the heap along with some other conditions to argue something's intolerable, but that sort of stuff standing alone is not going to be enough. So, you may ask yourself is this inconvenient? Does this hurt my feelings? That's not going to be enough. It's going to have to be something that's so serious where you go home at night, you're with your spouse, you're describing what's happening, and in your heart you're saying, "I don't know if I can go another day."
Robert Ingalls: 09:59 Right.
Josh Van Kampen: 10:00 I think folks will know what that gut check moment is, but even when they come to me and they tell me that I'm still saying, "I can stick it out a little bit longer. I'm worried about proving that this is intolerable."
Robert Ingalls: 10:15 Alright, those are the things that are not constructive discharge. But let's say that we think we have a reasonable claim for constructive discharge. Even having a reasonable claim, does that impact the settlement value of the case?
Josh Van Kampen: 10:27 Well, it does, because as an employer is examining his exposure in the case, they're asking two questions. One, are we going to win, and if we lose, what are we going to be on the hook for monetarily. Where you're dealing with a constructive discharge argument, the employer has two swings at the plate to win. First, arguing that the situation wasn't intolerable, and then second, that we can't prove discriminatory intent.
Robert Ingalls: 10:55 Yeah, so they've basically handed you two cases instead of one.
Josh Van Kampen: 10:58 Exactly. Right. And sometimes that can be okay, because you've got such a strong case to argue that the conditions are intolerable, but most of those situations are in the gray area, and I run into it all the time where employers are saying, even if they have a lot of exposure on the money, they're saying, "Yeah, but we feel we can win on the constructive discharge argument." And if we can just avoid that hole that we're digging out of in the first place, we're on a much more even playing, and then you're seeing that reflected in the value of a claim and settlement.
Robert Ingalls: 11:31 Right. It sounds like resignations are fantastic if you're on the employer's side, and you're not trying to pay out a claim of possible discrimination. Do you ever run into situations where you see an employer try to maybe reframe what may otherwise be a termination as a resignation?
Josh Van Kampen: 11:51 Basically any HR director is aware that there's a huge tactical advantage to couching something as a resignation. You'll often have times where the employer will maybe even in very obvious situations try to make it look like a resignation even when it isn't. For example, they may have decided in the meeting, you know what, we're going to fire this person. But in the termination meeting, let's tell him we're accepting his resignation.
Robert Ingalls: 12:19 You kind of want to get the minutes to that first meeting, huh?
Josh Van Kampen: 12:22 Right. And we will eventually. But the employer will absolutely try to be cute in getting you to say that you've resigned. They may even talk about how, "Well, if you resign, we'll give you a positive reference." That's a bad deal if you've got a strong discrimination case.
Robert Ingalls: 12:41 Is that a reasonable claim to bring in front of a judge and jury?
Josh Van Kampen: 12:45 If that's your only argument, which is to say in your termination meeting they said they would accept my resignation, obviously that's not intolerable. You just fell for a trap is what you did. In that sort of scenario, in the termination meeting, and we'll have a separate podcast just on navigating a termination meeting, but don't fall into that trap of resigning.
Robert Ingalls: 13:09 In closing, do you have any advice, any countermeasures that they can deploy or pitfalls to avoid?
Josh Van Kampen: 13:15 Always. When it comes to counter measures, one is, if you can get your supervisor to admit that he wants you to resign, that's golden. That doesn't mean he should. But that admission is huge, and you'd be surprised how often a supervisor may ... It could go something like this. It's like, "Listen, I know you say that you're not happy with my performance, so I would just really appreciate it if you'd just been real with me, and allow me to be real with you. Are you saying that you want me to go?" You know something like that in a disarming way. I mean all you're really trying to do there is get your supervisor to tell the truth. So, that's a good one.
Josh Van Kampen: 13:56 Another countermeasure is if you're at your breaking point, you have rights under the Family Medical Leave Act if your employer is large enough, and you've worked there long enough, to take up to twelve weeks of medical leave. Taking those periods of R & R are always a better option than resigning when you're at your breaking point. And an added benefit to that is that you're then covered, you're protected from retaliated against oftentimes for taking these medical leaves. It's another deterrent for folks to get terminated in that sort of scenario.
Josh Van Kampen: 14:31 As far as pitfalls go, sometimes people under the gun are tempted to wave their hand and say, "Hey, I hear that you're considering early separation packages. I'm interested." Well, oftentimes you're given what you're asking for, which is to fired, and you may not like that early separation package. It's another trap to avoid of essentially volunteering that you want to go. You don't want to give any indication that you want to go. We want employer's ... Because the employer wants you to go, and we want the employer to pay you to go on your own terms. And so if you're signaling that you're going to go anyway, you've removed that bargaining capital that you have which is to be paid for your employer's desire for you to go.
Josh Van Kampen: 15:20 Another pitfall is the gracious resignation letter. If you're resigning under condition where it's involuntary essentially, intolerable conditions to you, please don't write a gracious resignation letter that you don't mean. In fact, they don't teach you this in business school, but write a resignation letter that actually tells the real truth why you're leaving.
Josh Van Kampen: 15:44 And then finally if you do end up resigning, you may need a vacation really bad, but don't go on one right after you resign.
Robert Ingalls: 15:54 Is that going to be kind of the employer's exhibit one?
Josh Van Kampen: 15:59 Exactly, right. And of course, you went to Cancun, and you put some stuff up on Facebook.
Robert Ingalls: 16:05 Didn't look all that distressed then, did you?
Josh Van Kampen: 16:07 Right. And you know what, your manager, he does stupid things on Facebook too, but he's not the one bringing the lawsuit. You are, and so we need to be squeaky clean on our social media posts.
Robert Ingalls: 16:17 Right. Perfect. Well, we have covered a lot of ground here today. So, join us next week on episode four where we will be discussing how to prove your discrimination case. And we will be weaving in a quote from A Few Good Men. We will see you next week.
Outro: 16:38 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advise, and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCEmploymentattorneys.com, or better yet, call 704-247-3245 for a free initial intake interview, so Van Kampen law can evaluate your case. Until next time, keep your head up and your wits about you.
