Human Resources Questions for Dentists: Employee rescinds resignation; CE reimbursement

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QUESTION: I had an employee submit her resignation. She gave a two-week notice. During that time, she decided not to leave and wanted to rescind her resignation. Do I have to accept her change of mind or may I continue with ending her employment?

ANSWER: There is nothing, by law, requiring you to accept the rescinding of her resignation. You may continue with ending her employment if you so choose. However, you should do so with caution due to a recent ruling from the U.S. Court of Appeals for the Fifth Circuit. On November 17, 2015, this court held that an employer’s rejection of an employee’s rescission of resignation can “sometimes constitute an adverse employment action” and may be considered retaliation under Title VII. Tyrikia Porter v. Houma Terrebonne Housing Authority Board of Commissioners, d/b/a Houma Terrebonne Housing Authority, No. 14-31090 5thCir. Nov. 17, 2015).

We can’t provide the full details of this court case here. Suffice it to say, this case points to the fact that context matters with all employment decisions. In this case, the plaintiff submitted her resignation and then testified at a grievance hearing that her supervisor had sexually harassed her. After, the plaintiff rescinded her resignation, which was denied by the accused supervisor.

As a result, the decision to refuse to rescind a job resignation may be challenged and a court could analyze the context of the rejection of the rescission to determine whether it is considered an adverse employment action.

QUESTION: We have asked our staff to attend a course to learn new technology. It is not mandatory and we have paid for the airfare. If an employee is not able to attend the class, is the employee responsible for reimbursing the office for the airfare?

ANSWER: Anything you have paid, that is a requirement of the law, cannot be reimbursed to you by the employee under any circumstance.

If you paid for some of the expenses that are not required by law, then you possibly could require reimbursement. You need to establish this agreement in advance and in writing. Deductions from the employee’s paycheck may or may not be legal, depending on your state. Regardless, minimum wage rules must be adhered to at all times. This means that the cost of the expense being reimbursed cannot reduce the employee’s wages to below minimum wage.

So the question is—Were you required to pay the travel expenses associated with this CE or not? The answer to this depends on which state you’re in and whether your obligation is triggered by the following four criteria:

1. Attendance is outside regular working hours
2. Attendance is voluntary
3. The training session or meeting is not directly related to an employee’s current job
4. The employee performs no productive work during the training

If the answer to all of the above criteria is “yes,” then you do not have to pay for the continuing education event, and thus you don’t have to pay the expenses.If even one of the above criteria is not answered with a “yes,” then you have to pay for the continuing education event.

What do you have to pay for? You have to pay for any time the employee spent at the training. Relative to the expenses, you are not specifically required to pay for expenses under federal law, but there’s a catch to that as well, so that doesn’t always hold true. State laws are different and may require expenses to be paid. For example, in California, all expenses except meals have to be paid.

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Human Resources Questions for Dentists is provided by Tim Twigg and Rebecca Boartfield of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.