Resign or You’re Fired!

Stephen W. HogieEmployment Law Blog

Resign or You’re Fired!

              You are a California employee. Imagine being hurried into a conference room. As you enter the room you see your company’s human resources representative and your manager or supervisor sitting at a long dark conference table.  You are shocked and then, in what feels like slow motion; told that your employment is over.  Next as your emotions begin to rollercoaster, you think of the impact that the loss of your job will have on your life, you are forcefully presented with an ultimatum, the human resources rep says, “Either resign or you’re terminated!”

              Many employees, regardless of the reason behind the decision to end the employment relationship, wonder which to choose. Unfortunately, many times employees are directed to make the decision on the spot without legal counsel.  They don’t know the possible outcomes of selecting these options.    It gets even more complicated if you believe you have been unlawfully terminated.  The fact is that your employer is ending the employment relationship and while trying to come to grips with that fact you are forced to decide how to label it.  There are positives and negatives to each decision.

Benefits of Resignation

              Your employment reputation is preserved.  You can put down you resigned from your last job on applications and in your resume.  This looks much better than a termination.

              Sometimes resignation comes with a one-sided severance agreement, which is a release of all potential claims against your employer in exchange for some monetary compensation. Many times additional terms are needed to protect you.

What if I Don’t Resign and Force the Termination

              If you have a potential discrimination claim, because you are in a protected class, and you litigate, any resignation will be used by Defense counsel to reduce the recovery of monetary damages.  An actual termination where there is discrimination gives rise to significant damages that can be pursued under several California laws.

              If you resign some employers will fight your California unemployment insurance claim. While under some EDD precedent decisions the employer is considered the moving party under this fact pattern and you may be eligible for benefits absent a clear showing of gross misconduct or some other reason to deny benefits. This classification could potentially delay your unemployment insurance benefits.

              Under Labor Code § 203 your final pay becomes immediately due upon a termination.  You could potentially have to wait up to 72-hours if you select the resign option.

              Your employer has nothing to stop them from telling potential employers you apply with that you were terminated.  Stating the reason for separation from your last employment in employment applications or discussing the reasons in a new job can be difficult hurdles to overcome to gain new employment.

Contact Us. Our Advice is 100% Confidential.

              We can help. It is always better to get counsel from an employment attorney before this moment; especially if you believe you have been victimized by discriminatory or illegal practices. Hogie & Campbell will discuss your situation at no cost to you to help you determine whether you need to take action to protect your rights. At Hogie & Campbell we have helped prepare many employees for the “resign or you’re terminated” moment. Call for a Free Consultation at (714) 508-6422.

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