Constructive Term.?

guymandude

Hello All,

New here and fairly new to the HR field but so far this forum has given me a great education/headstart. I work at a medium sized technology company in TX. My company has a policy of asking some EEs to resign vs. being terminated when management has decided to terminate. My question: Has anyone ever been concerned that the EE could resign, claim it was constructive termination, and get UI because they didn't have time to decide?

Thanks in Advance,
Guymandude

Margaret Morford

Each state determines how it will pay UI. Tennessee (where I am) is a pretty employer-friendly state. Even here, if employees resign in lieu of being terminated, they can collect UI as long as they weren't fired for intentional misconduct.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

ray a

We terminated a supervisor last January for brandishing a knife when asked a question by a contracted ISO auditor. He was just joking around, but it was in poor taste and the poor auditor wasn't sure what was going to happen.

During the termination interview, I gave him the option of resigning or we would fire - his choice. He received UI only because he had no other marks on his record.

Shadowfax

I agree. I think you wil find that in most states, a resig. at the request of the employer is treated as a term for purposes of UI. It may be the best of both worlds for the ee.

scottorr

Even if someone resigns for other reasons, and they move more than 50 miles in NY, they can still collect. I live in Albany and at the time I work in health care. We had a nurse resign and move to NY city. She filed a claim for UI. We tried to fight it but for some reason they sided with her. We even offered to give her her job back and UI said no, she had moved more than 50 miles away. I also found it hard to believe that an RN couldn't find work in NY city.

In NY you can pay per claim or pay on an on going basis and thats what happened at the health care agency I worked for, we paid per claim.

Another way you can get hit with UI is if an employee resigns for a new position and gets fired in less than a year, you will be required to pay a portion of that.

System

I don't think that asking an employee to resign rather than being terminated qualifies as a constructive termination. A constructive term is where the employer deliberately makes working conditions so intolerable that the employee will resign.

We allow employees to resign as opposed to being terminated. It doesn't make much difference to unemployment but the employee feels better about resigning when they fill out the next job application.

"Sam"

Don D

I (think) I agree with Margaret. In MS, it's not a matter of the semantics of whether fired, separated, resigned, terminated or whatever. The eligibility decision is based on who initiated the separation and why. In the case of a resignation in lieu of discharge, it would boil down eventually (in appeal) to what caused the employee to be without a job...what led to it, not what the leaving was called. If I had an employee who brandished a knife in a perceived threatening way, I would recommend firing him. But if I did allow him to resign in lieu of firing (don't know why in the world I would), I would still protest an award of benefits and fight it in appeal and win with witnessed, documented evidence of the gross misconduct. I can't imagine (or maybe I can) that in Ray's state it might boil down to whether or not this was his first time to pull a knife on somebody. Sheeeeezzz.

Leslie

We usually only allow resignation in lieu of discharge in management cases where a change at the top creates a conflict in style. In other words, we got a new GM and two managers continued to want to do things in the way of the old GM. They chose resignation, and both collected UI for a while.

I would never allow a resignation in lieu of discharge for gross misconduct. Sorry Ray, I'm with Don. Brandishing a weapon would not qualify for resignation. I know in AZ a judge will ask me why we would allow resignation when I have a justifiable case to discharge

ray a

Don and Leslie, I actually agree with you. I didn't tell enough of the story to give you the full picture. He didn't threaten anyone with the knife, he used it to illustrate that we use corporal punishment to enforce training - all as a joke. It was not perceived as gross misconduct, just very poor judgement. If he had threatened someone, I fully agree, he would have been fired - I may have even called our friendly Sheriff's dept. next door to escort him to the border. Where the poor judgement came in, was this was done in answer to a question by an ISO 9000 auditor from our Registrar. She was from Chicago, a long way from home, and it was only her second visit to our facility. We were not concerned that he would do something stupid, like use it. But, she had no idea who this guy was and what he was capable of. You read all kinds of stories in the paper.

To his credit, the next day when we terminated his employment, he took it like a gentleman (imagine that). The UI decision was based on the fact that he had no prior disciplinary action documented and there was no real perceived threat.

Don D

The New York appeals officer will rule that any woman from Chicago could not have been the least bit offended by a blade and the guy will draw his claim.

Whirlwind

I'm also in TX and can assure you that from the standpoint of the Tx Workforce Commission (who administers UI), asking someone to resign is the same as terminating them without good cause. For someone NOT to get UI, either when you've fired them or asked/allowd them to resign, you have to prove good cause. And depending on the seriousness of the offense, you may have to prove that they were warned in writing previously. One time I was having a phone conference with a UI claims processer who didn't quite understand our written account of why we fired a young woman. I finally had to say, "Okay, Mr. Smith, how long do you think you'd have a job if you called your boss a 'fat f*cker' in front of your agency's clients?" That did the trick. Prior to that, I guess he was actually considering granting UI to this woman because we'd never warned not to call her boss something very vulgar in front of children.

Don D

Whirlwind: I think your state rule is much the same as mine. From your post, I see that in Texas, even though you ask someone to resign, and they do that, they will not draw a claim if you show on appeal that you had a good reason to initiate the termination, a reason that will fall in line with the TWF regulations on dissalowing benefits.