Articles

Slater's Slide

Philip J. Trobaugh

Recently, Steve Slater had enough of his job as a flight attendant on JetBlue Airlines, activated the emergency slide to the plane he was working on, and made a dash reminiscent of the sci-fi movie classic, "Logan's Run." Slater's Slide has captured the public's imagination, and it is not hard to see why. The economy and job market have been in a shambles for at least two years. Some without jobs are now entering their 99^th-plus week of being unemployed, and a projected 2.5 million have given up actively seeking work. Even for those employed, it seems that their jobs and careers have become harder: work furloughs have become en vogue for many large employers, as have salary freezes and reductions. Customer service has become more difficult as everyone has been experiencing stress.

As a result, many see Slater as a workplace hero, a "Norma Rae" for the 21^st Century, striking out on his own in defiance of intolerable working conditions. Some view Slater's act as a kind of unique performance art commenting on the state of employment in America; others see it as an impulsive stunt with no larger meaning. And still others see Slater as an example in the negative.

However one views Slater's Slide, quitting or resigning generally has the effect of reducing any potential legal claims from a prince to a frog. In most cases, resigning is viewed under the law as a voluntary act on the part of the now ex-employee and gives the employer a powerful defense against claims of harassment or discrimination. Any alleged legal harm suffered is examined through the "adverse action" of the employer, which comes most starkly in the form of firing or job termination. The damages mainly consist of lost wages as a result of the employer's act. But, resignation alters the calculus. Now the employer can argue that no adverse action took place, because it was the employee who voluntarily resigned. Regardless of the underlying circumstances giving rise to the resignation, this is hard for the employee to overcome in a lawsuit.

It is true there are some circumstances that propel otherwise good employees out of an intolerable workplace environment that no reasonable person could have endured, thus forcing the employee's hand into resigning. This is often termed "constructive" termination because the resignation was not entirely voluntary. In such cases, the forced resignation remains an adverse action on the part of the employer. Proving constructive termination is doubly difficult in many situations. The facts must be especially egregious and headline grabbing. In the Slater situation, facts are still emerging as to what prompted him to activate the emergency slide, so it is too soon to say whether he could argue he was constructively terminated.

Resignation can also impact a former employee's ability to collect unemployment compensation benefits. Resigning normally puts the brakes on the process, denying benefits to those who have quit. Claimants can appeal this determination, and try to argue constructive termination, but, this is an uphill battle at best. Unemployment compensation, now with a maximum of 89 weeks of benefits, can represent a considerable amount of money, upwards of $52,065.00 at the maximum weekly rate of $585.00.

Resigning in a grand style or going out in a blaze of glory like Slater, may seem entirely justified and satisfying at the time. In the abstract, it certainly appeals to many American employees, as the story of Slater's Slide and the positive reaction it has received so far demonstrates. But, such actions can also undercut an employee's legal claims, assuming any are present. It shifts the focus of whatever legal case there is from the alleged wrongdoing of the employer, to the semi-self destructive acts of the employee. It may cast the aggrieved employee with a legitimate complaint into a surly malcontent, hell-bent for leather and retribution. It is a common tactic among some employers to try and subtly maneuver problematic employees in such a way so that the employee quits rather than being fired. That way the employer can avoid paying unemployment tax and also ensure an effective defense to any potential legal claim.

Resigning has a number of risks and doubtful rewards, in the absence of moving on to a better employment situation. As a result, those inspired by Slater's Slide should look before they leap.

Phillip J. Trobaugh is an employment lawyer with 19 years experience, at Mansfield, Tanick & Cohen.