Do you worry that encouraging someone to retire when he’s facing disciplinary action could backfire? Relax. In most circumstances, a voluntary retirement that isn’t pressured or forced because of a threat of imminent discharge isn’t considered a constructive discharge.
Recent case: Edwin Jolly had worked in the University of North Carolina at Wilmington’s information technology division for 22 years. Then, he got into a dispute with his supervisors about implementation of a new email system. The argument grew heated and Jolly ended up being placed on paid administrative leave while the university launched a disciplinary investigation.
Before the investigation progressed, Jolly tendered his resignation and announced he would be retiring immediately.
Then he sued the university, alleging that working conditions had been so terrible that he had no choice but to retire. He claimed he had heard rumors that he was about to be fired.
The court tossed out his case. It reasoned that rumors aren’t enough to warrant quitting and retiring. There was no evidence that the university had made Jolly’s working life so objectively intolerable that he had no choice but to quit. While it might have been frustrating and stressful to be placed on leave, he didn’t lose any money and wasn’t in imminent danger of termination. (Jolly v. University of North Carolina at Wilmington, No. 7:09-CV-136, ED NC, 2011)
Final note: As an employer, you shouldn’t bring up retirement. Instead, let the employee propose it. If he does, send him to the HR staffer who handles retirement eligibility. Treat the employee just as you would any other employee asking about retirement benefits.
It’s also a good idea to contact your attorney as soon as the employee mentions retirement, especially if he ties the idea to pending disciplinary action.