Overview: When an employee resigns, HR has the opportunity to assess any post-employment risk the employer may face, as well as the ability to take proactive measures to guard against future risk. Having established policies and procedures in place to process a resignation is crucial, as the employer may not have any advance notice when resignation occurs.
If and when the employer does receive notice, it should take steps to understand the reason for the employee's resignation. Should the employee feels as though he or she was forced out of the company, the employer should address that concern, conduct an internal investigation where necessary and discuss the issue with in-house or external counsel. Alternatively, if the employee is resigning in favor of a different business opportunity, HR must explore business loss considerations like loss of trade secrets, client and/or prospect lists and property theft.
Trends: Use of non-compete agreements or restrictive covenants to shield the employer's business interests continues to be a hot topic. Considering that the enforceability of such agreements largely turns on state law, it is important for HR to understand how such agreements are analyzed in their state. HR should actively participate in the drafting of such agreements to ensure they are fair and reasonable and that the employee is fully informed of the implications and has good incentive to agree. This can be crucial in making certain the resigning employee leaves on good terms.
Author: Michael Jacobson, JD, Legal Editor
Updated to include information on a Supreme Court decision that addresses the statute of limitations for filing claims of discrimination resulting in constructive discharge.
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