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Eligible/ineligible for rehire vs. constructive discharge

By Lynne Curry

Here’s a real-life question where the employee feels she has an issue—but it’s truly the employer’s problem.


After working for an abusive supervisor for more than a year, I plan to give notice. The last straw was when she confronted me yesterday. She said I hadn’t completed a project, and she expressed her dissatisfaction by grabbing my arm and shouting at me.

My company requires that employees give two weeks’ notice, or we’re ruled ineligible for rehire. I don’t want to work here again, but I’m afraid being labeled “ineligible for hire” will prevent me from getting a good job.

Please don’t tell me to go to human resources or any senior manager for help. I’ve sought help from HR and never received any. I’ve sent my manager’s manager two emails, the second one asking for a confidential meeting, and never received a response.

I also know my company will consider me a traitor if I don’t work out my final two weeks, but senior management hasn’t helped me deal with this supervisor when she comes into my office, as she has several times, leaning over my desk and shouting at me.

I don’t have a job lined up and am afraid that a horrible reference from this supervisor along with an “ineligible for rehire” label will nuke my job prospects. What can I do?


If your supervisor physically grabbed you, she may have violated your organization’s code of conduct, or policy against harassment or workplace violence. In many organizations, that’s an offense that merits termination. It may also constitute criminal assault.

“Most employees are not required to provide their employers with two weeks’ notice when they resign,” says labor and employment attorney Renea Saade, a Shareholder with Littler Mendelson. This notice is typically only required if an employment contract or company policy requires it and even then, the notice requirement can sometimes be excused.”

According to Saade, when a workplace environment is hostile to the level that no reasonable person could be expected to continue working for the employer, or when the work environment unreasonably interferes with an employee’s ability to perform their duties, it may excuse an employee’s obligation to provide notice.

Says Saade, “Your supervisor’s conduct and the failure by the company’s HR department or senior management to do anything to stop this supervisor’s behavior may serve as a basis to waive any two weeks’ notice requirement. In such an instance, an employee facing these circumstances can take the position that he or she was ‘constructively discharged’ before the resignation took effect.”

Saade suggests you visit HR one last time, explain to them that you want to resign, and see if you can negotiate a mutually acceptable last day of work. This may allow you to leave on better terms and protect you from forfeiting rights you may be entitled to if you give a full two weeks’ notice. Such rights may include eligibility for re-hire, a positive reference, and/or a cash out of your PTO balance.

Further, HR may do more. Even if they turned a blind eye toward your supervisor’s shouting and other behavior up until this point, most HR representatives will understand that an arm grab might be viewed by outside officials as an assault.

Finally, employees whose job search is weighed down by negative references from their former supervisors have multiple options for overcoming the problem These include providing multiple positive references from prior supervisors or other senior managers from the applicant’s most recent organization. These may lead to a prospective employer not even calling the most recent supervisor. In your case, you may be able to negotiate a positive reference letter you’re your HR officer. Alternatively, performance reviews documenting your positive performance carry more weight than a letter of reference.













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