February 18, 2016 — Volume 36 Issue 6


By Rebecca M. Tinder, Esq.

Q:  Does an employee resignation have to be in writing?

A:  The West Virginia Public Employee Grievance Board indicates that it must be in writing.

A West Virginia school law (W. Va. Code § 18A-2-6) states that “[t]he continuing contract of any such employee shall remain in full force and effect except as modified by mutual consent of the school board and the employee, unless and until terminated with written notice, stating cause or causes, to the employee, … or by written resignation of the employee … 

The West Virginia Public Employees Grievance Board recently applied that language in a case before it stemming from a county board’s policy that contained the following language: “[a]n employee who fails to report to work for three consecutive days and fails to notify his/her immediate supervisor of the absence and the reasons thereof is considered to have voluntarily resigned.” In applying the statute to the facts of the case, the administrative law judge ruled that resignations are supposed to be voluntary. Since the application of the policy resulted in an involuntary separation from employment, it was not a voluntary resignation, but rather a disciplinary act requiring “written notice of the charges against him, an explanation of the evidence, and an opportunity for Grievant to respond.” [The Grievance Board’s decision was in the case of McClure v. Raleigh Co. Bd. of Educ., Docket No. 2016-0324-RalED (Jan. 11, 2016).]

Thus, the Grievance Board appears likely to treat any policy containing similar language leading to a resignation by operation of policy, rather than by voluntary written resignation, as an involuntary separation from employment and contrary to law.

Tinder, a partner in the firm of Bowles Rice LLP (Charleston) and a member of the Bowles Rice Education Law group. She advises, represents and conducts trainings for school districts, regional education service agencies, and multi-county career and technical education centers.