KBS Reference Desk: Negotiating Resignations

Q:        I have a term contract teacher whose performance has dramatically declined this year. I have held her name from the contract renewal list hoping to see improvement but will likely recommend a proposed nonrenewal to the Board.  I was thinking of giving her a chance to resign first but worried I might be inviting trouble. Are there risks to requesting an employee’s resignation?

 A:        Yes. A claim of constructive discharge exists when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign, including harassing or coercive actions calculated to encourage an employee’s resignation. As such, the key when negotiating a resignation is to educate the employee about the employee’s options (resignation being only one), rather than coerce a resignation with threats or false promises.

While the Texas Education Code does not require that an employee be given advanced notice before making a recommendation for probationary contract termination or nonrenewal, experienced superintendents have learned over the years that advising the employee of your intentions prior (rather than subsequent) to the board meeting can prove beneficial to both you and the employee. Practically speaking, your “heads up” gesture, as a professional courtesy, allows the employee to “take control of his or her career” and choose to resign (effective at the end of the school year) rather than have a proposed contract nonrenewal or termination on his or her record. These dialogues can be a win-win for both parties when the resignation comes voluntarily, as the District avoids the costs of the hearing or grievance process and the employee avoids the blemish on their resume.

Critical to a voluntary resignation is a lack of “duress or coercion” by the employer. This might include threats by an employer to do something it has no legal right to do (think reassignment outside of an employee’s professional capacity or nonrenewal with zero documentation) which destroys the “free will” of the employee and deprives the employee of due process or procedural protections they might otherwise have. Whether a resignation is voluntary is determined on an objective basis – in other words, would a reasonable person have felt forced to resign under the same circumstances? Both the environment (how many administrators were in the room?) and the timing (“you have 10 minutes to decide” versus “think about your options over the weekend and let me know what you decide”) are instrumental in the reasonableness analysis. Courts also consider whether a decision to resign was made on an “informed” basis; thus, educating the employee on both the substance of the documentation you have to support your recommendation, as well as the process that will ensue, allows the employee the opportunity to make an educated decision after hearing all of the facts and possible outcomes. Having the relevant policy in front of you when you meet with the employee (DFAB if probationary, DFBB if term), as well as the documentation supporting your recommendation (with pertinent text highlighted) will help to ensure comprehension.

In situations where an employee has filed a current or prior claim of discrimination, has cried harassment or retaliation, or fits into any other protected class, we recommend seeking advice from your school’s legal counsel to ensure that any employment action is carefully navigated to avoid further legal risk.

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