A common question our Education Law Group receives is, “Can an employee rescind his or her written resignation that has been submitted to the superintendent and is waiting on approval from the board of education?” Unfortunately the question often arises frequently in situations where the employee is not the “best employee” and administration feels thankful upon receipt of the resignation.

The short answer is yes, an employee does have the legal right to rescind his or her resignation prior to the board’s acceptance.

The West Virginia Public Employees Grievance Board has long held a school employee has the opportunity to withdraw his or her resignation before it is accepted by the employer. The West Virginia Supreme Court has also stated that, in the case of school employees, an offer to resign may be withdrawn at any time before such acceptance takes place. The court has held the tender of a resignation by a school employee under contract was a mere offer to mutually rescind the contract of employment and was not binding on either party to the contract until its acceptance by the employer. The resignation may be withdrawn at any time before acceptance by the employer, and that means officially accepted by the board at a lawfully noticed meeting.

Unfortunately, there are also occasions when the employee attempts to rescind the resignation after the board has accepted the same. In this scenario, the employee via the grievance process (if timely) claims the resignation was a result of coercion or involuntary resignation.

In this scenario, the burden of proving by a preponderance of the evidence a resignation was involuntary lies with the former employee. Courts have long held a resignation is presumed voluntary. The presumption of voluntariness may be rebutted, however, if the former employee can establish the resignation was the product of duress or coercion brought on by the employer, the result of misleading or deceptive information, or if the employee was mentally incompetent.

Whether a resignation was voluntary is a question of fact which must be resolved on a case-by-case basis, according to legal decisions. The voluntariness of a resignation is determined based on whether the totality of the circumstances supports the conclusion the employee was effectively deprived of free choice in the matter. Factors considered in the analysis are whether the employee was given time to consider his course of action or to consult with anyone; whether the resignation was abruptly obtained and/or inconsistent with the employee’s work history; and whether the employer had reason to believe the employee was not in a state of mind to exercise intelligent judgment. Duress has been found where the employee involuntarily accepted the employer’s terms; circumstances surrounding the resignation permitted no other alternative; and the circumstances were the result of coercive acts of the employer.