I*m Gonna Make Him an Offer He Can*t Refuse

"I’m Gonna Make Him an Offer
He Can’t Refuse”
The Legal Implications of Forced Resignations
 Employees
employed on annual or multi-year
 Employee
non-renewed at the end of the
contract period – some level of procedural
due process
 Employee
dismissed during the contract
period – some level of procedural due
process but likely more than for a nonrenewal
14th Amendment – No deprivation of life, liberty
or property without due process of law
An employment contract is a constitutionally
protected "liberty" and "property" interest that
cannot be terminated without some level of due
Level of due process and actual procedures vary
from college to college
A forced resignation deprived the individual of
their liberty and property interest without due
Jeffery Leardini sued the Charlotte Mecklenburg
Board of Education on a civil rights theory that
he was wrongfully forced to resign from this
teaching position from Charlotte-Mecklenburg
Schools in the wake of sexual misconduct
allegations lodged against him by several
Jury verdict in favor of Mr. Leardini against CMS
for $1.1 million (later settled for $680,000).
Probably could not been avoided.
 If
the employee "voluntarily" resigns, no
deprivation of a constitutionally protected
 Involuntary
Resignations can be proved using
two theories:
Obtained by employer’s material
misrepresentation or deception; or
Forced by employer’s duress or coercion.
 Material
misrepresentation means that a
false statement concerns either: 1) the
consequences of the resignation (e.g., "You
will lose your retirement if fired"); or 2) the
alternative to the resignation (e.g., "Quit or
be fired").
 Reliance
on the false statement must be
reasonable under the circumstances.
Duress means that the:
 Totality
of the circumstances demonstrate
that the employer’s conduct took away the
employee’s free choice to resign.
Duress means that the:
Factors to consider in analyzing possible duress:
Whether the employee was given some
alternative to resignation;
Whether the employee understood the
nature of the choice s/he was given;
Whether the employee was given a
reasonable time in which to choose; and
Whether s/he was permitted to select the
effective date or resignation.
Duress means that the:
 Mere
"unpleasant choice" of "resign or face
legal or disciplinary action" does not
establish a due process violation.
If serious allegations are made against an
employee, use suspension with pay to allow time
to investigate.
Meet with the employee as soon as you know the
facts to get their side of the story. Sometimes
this requires multiple meetings with the
Do not bring up resignation at the initial meeting
or during fact-finding meetings with the
employee. Let the employee ask about
Do not offer opinions regarding the outcome of
the investigation.
Do not make promises or offers to entice an
employee to resign unless it is part of a written
resignation agreement.
If the employee insists on resigning, do NOT offer
favorable terms such as positive reference, removal of
documents from the personnel file, no further action,
etc. In other words, allow the employee to resign
without making any promises.
Encourage the employee who wants to resign
immediately to take time to consider the decision and
to contact an attorney or other representative. If they
decline, put that fact in writing for their signature and
make no other promises or deals!
If the employee wants to negotiate their resignation,
involve your board attorney to get the terms of the
resignation or employment separation in writing.
Always involve a witness who can support what
happened in the meeting and write-up your meeting
notes immediately after the meeting.
Don’t be in a hurry to get a resignation! If there is
good reason for s/he to resign, s/he will.
I hereby voluntarily resign my employment with Tar Heel
Community College effective as of September 30, 2014.
I hereby affirm that I was not asked, coerced or forced to resign by
my employer but hereby choose to resign on my own free will. I
hereby agree that my employer has made no representations
regarding the effect of my resignation on any pending or future
investigation and/or matters arising from such investigations, if any,
including but not limited to: possible reports to and/or cooperation
with law enforcement. I simply wish to resign and believe that such
action is in my personal best interest.
I had ample opportunity to consult with an attorney or representative prior to signing this form.
Employee: ____________________________ Date: _____________________
Witness: ______________________________ Date: ___________________
Acceptance of Resignation
President: ____________________________
Date: ___________________
Chad Ray Donnahoo
Campbell Shatley, PLLC
674 Merrimon Ave
Suite 210
Asheville, NC 28804
[email protected]
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