Tuesday, January 31, 2017

If An Employee Fails to Return to Work from Leave, Can An Employer Label it a "Voluntary Resignation"?

A very popular and common way employer's separate an employee from their employment is by labeling certain circumstances a "voluntary resignation."  For example, employer's will issue employee's letter stating that if they do not comply with or do certain things, like, return to work, they will be deemed a "voluntary resignation."  This very often becomes a focus of subsequent litigation as a recent case out of California highlights as a California court of appeals reversed a lower court's grant of summary judgment for an employer finding that an employee's communications while they were on leave could be deemed to be a reasonable request for additional leave.

In Leticia Bareno v. San Diego Community College District, the plaintiff had a history of being disciplined by the defendant for performance issues.  In early 2013, the plaintiff was disciplined and issued a 3-day suspension from work without pay.  On the date the plaintiff was to return to work, she notified the defendant of her need for medical leave in the form of a note from her doctor.  From The National Law Review article on the case:
On the date her original leave was set to expire, a Friday, Plaintiff emailed the College a second doctor’s note extending her leave an additional week. The College strongly denied ever receiving that email.  On that same date, the Plaintiff sent the College another email – which was received – stating that she was out on a medical leave and would notify all concerned of her return but provided no further detail of her return date or supporting documentation from her doctor. 
Plaintiff continued to be absent from work the following work week (the “disputed week”). As a result, at the end of the disputed week, the College mailed Plaintiff a letter to inform her that her five consecutive unauthorized absences constituted a voluntary resignation.  As soon as the Plaintiff received the College’s letter, she immediately attempted to contact the College and provided the College with medical documentation supporting the medical necessity of her absences, but the College refused to reconsider.
Thus, the defendant attempted to do what a lot of employers do and give a strict directive that, if not followed, would allow them to separate the employee from their employment and label it a "quit."  Because the plaintiff was clearly trying to obtain medical leave to allow her to not return on her scheduled return date, it doomed the defendant on appeal.  The defendant in this case should have ascertained whether the employee was able to pursue valid leave instead of ignoring the plaintiff's communications and automatically separating when she did not return following her 3-day suspension.

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