Can a “Resigning Letter to put in the file” really stand up if you are in fact fired?
Once I was consulting at a large company ($3 billion revenues) when all the execs were upset.
A merger had just occurred and everyone at a certain level was asked to put a resignation letter in the file or be let go immediately. Most signed, some quit, but all figured it was illegal. They also figured, since the company had more lawyers than anybody they could hire, that they had no real choice.
It is pretty common to tell someone, “Either resign right now, or else we’ll fire you right now. It’s your choice.” But that doesn’t seem to be what you are describing.
Do you mean that they were told, “Give me an undated resignation letter right now, and that way you can keep on working until some future time when I’ll put a date on that letter, or else we’ll fire you right now.” Wow, I never heard of such a procedure before. Pretty nasty.
My experience was a situation where some one (with union rep available) was offered the option of signing a letter of resignation or be fired. He signed, then that evening sent a letter saying he recinded the letter of res.
He didn’t get anywhere.
In the situation you describe, I would consult an attorney more familiar with the laws in your state. (that’s if you’re seriously considering filing suit)
Some of the other issues are: The new company may not have had any obligation to continue the service of ANY employee.
Some states are “Right to work states” in that an employer can choose to fire without stating a cause.
The merger may have been contingent upon all employees having such a letter on file
In general, when looking for work, a “quit” is easier to place into new employment than a “fired”.
A tests you could place on your situation:
File for unemployment insurance. If you “quit” generally, you’re not elibible, if, after an investigation, it’s determined that you didn’t “quit” you are eligible.
Although "quit"s are easier on your resume than "fired"s, they’re also good for the employer.
Their unemployemnt insurance premium goes up for every person they fire. It also goes up more if it’s higher-paid people who are fired.
I was once with a company that had an old engineer who wouldn’t quit. He had two pensions paying him, plus he was a “highly-compensated” employee. Because of the latter, they were loathe to fire him. They gave him the crappiest computer and the worst desk location (in the middle of a room). Still wouldn’t quit. After I went to another company, they finally “asked” him to retire.
To anyone reading this thread:
If you are going to be fired, and you think you will NEED to collect unemployment insurance while you look for your next job, and you you have solid references from prior jobs, do not accept the company’s offer to “allow” you to resign. Make them fire you. Unless you are in an at-will state, most companies have policies in place that require them to go through a process before they terminate you. It has to be based on performance evalutation, documentation of your bad performance, evidence that they tried to get you to correct your ways, etc. If you submit a letter of resignation you cannot collect unemployment insurance, even if they did “force” you to do it.
As you interview for jobs, when they ask “may we contact your current employer”, say NO. Leave it at that. If you’re called on the carpet, don’t lie about being fired. “My employer decided that I was a bad fit for the position, and we couldn’t come to an agreement on a new direction for me within the company.” “I was let go as a result of the merger, when my new supervisor preferred to bring in his own people.” Keep it as neutral as possible, and change the subject back to something positive.
If you don’t need the insurance, then resign. Then you can honestly answer all those “reason for leaving” questions on job applications “resigned.” Don’t go into detail - “The bastards tried to fire me so I quit” doesn’t get you any points.
Is Bobby Knight posting on SDMB now?
Personally, I don’t see what the big deal is. If there was a risk my job was in jeopardy, especially for reasons other than poor performance (i.e. merger, divestitures, ‘downsizing’, etc.) I would APPRECIATE my employer telling me through some vague mechanism like ‘file an undated resignation or you’re fired on the spot’. While I don’t know contract law all that well, I think that it establishes a notion that you will be let go SOON, but in the meantime, will receive full pay while you look for something else.
If you filed that form and they fired you before you could find a job (like 2 days later), my guess would be that a court would probably throw out the contract anyway as being illegal since no time frame for ‘performance’ is specified (i.e. you won’t be asked to resign for at least X days if you file the form). And if the company didn’t offer to buy you off from the beginning with a big severence package from the beginning, you just know the courts would nail their asses for punitive damages under those circumstances
In my jurisdiction, “resign or be fired” is a type of constructive discharge. That is to say, the law recognizes that this “choice” is not really a choice and the individual has, in fact, been fired. In this jurisdiction, “constructive discharge” is defined as:
If the company threatens to do away with benefits, bonuses, recommendations, etc., if you do not resign, then they have put you in a position where “voluntary termination” is the only reasonable alternative. The supreme court of this state, however, recognizes that under such circumstances the termination was not really voluntary. (Of course, YMMV.)
Notice that this definition is entirely separate from the question of whether a termination is wrongful or not. Regardless of whether an employee is constructively discharged or just discharged outright (i.e., fired), the company has done nothing illegal unless the discharge was wrongful. If they have grounds to fire you anyway, they can certainly ask you to resign instead. If you agree, you have no grounds for complaint because they had every right to fire you in any event.
Employers have to pay 50% of your unemployment. They don’t want to do this. To them, you are expendable resources. A resigning letter produced at an unemployment hearing will get you no unemployment. They will not have to pay 50% and you will be considering living on the street. They will be happy. You will not.
To give you an explicit threat of sign this letter now or be fired should pretty well let you know that your butt is out of the door. Companies today have had years to work out ways around the various labor laws with their lawyers. Now, we need some new labor laws.
I’m not so sure–I think this is used quite often in appointed positions in government (before the individual is appointed), and I wouldn’t be at all surprised if it’s used in the very top levels of business. It’s always much cleaner, especially for politicians who like to avoid ugly management controversies, to say someone resigned. What better way than to have a signed resignation letter (which is very nice because it was written while the individual is still sucking up so as to get the appointment) ready to pull out of the desk drawer as needed?
FTR - I would love to be fired, or laid off. Why? Because then I could take one of several outstanding job-offers, the lowest paying of which would be a $20k raise. And it would satisfy my honor, as I cannot honorably quit right now, having given my word to stay for one more year. Sigh.
To quote Steven M. Sack:
…the golden rule is never to quit a job if you can help it. Refuse an employer’s offer to resign whenever possible. This is because if you resign you may be waiving a claim to unemployment and other severance benefits, including earned commissions. This is a trap many employees fall into.
If a company gives you the letter and the ultimatium this might be a good time to stall. Tell 'em you’re going to talk this over with your spouse or your Mother or Father.
And RIGHT THEN consult an employment lawyer. You may learn that you could make a deal with your employer (and confirm it in writing) that although the company would agree to inform prospective employers that you resigned for personal reasons, it will not contest your unemployment benefits or deny paying you other benefits you would have received had you allowed the company to fire you. You may learn that if you are close to earning a vesting pension, profit-sharing benefit or year-end bonus, your resignation would seriously undermine a claim for them.
You can’t stop an employer from firing you. You can try to work a deal with that employer.
Being asked to sign an undated letter of resignation is nothing new, and not necessesarily related to unemployment compensation. Legend has it that Jimmy Carter asked all his cabinet officers to sign such letters. I couldn’t confirm that, but I didn’t hear it from a crackpot source. I heard it from my college Political Science professor. Um, never mind. On second thought, he was a crackpot source.
AFAIK, preemptive letters of resignation for cabinet officers are unnecessary since generally they serve as long as they enjoy the confidence of the CEO (presidential system) or Parliament and as soon as they lose that confidence, they cannot refuse to leave. What is common in many governments is for any appointees in “positions of trust” who do not have a fixed term to, as a matter of course, “place their offices at the disposal” of their immediate elected-official superior upon of a new administration/government (which when I once held such an office; net effect, the next Speaker retroactively appointed me as of his date of inauguration).
IMO, a preemptive letter of resignation is just a sign that your employer is simply vile. And sorry, magdalene, but if “The bastards tried to fire me so I quit” is the truth, it IS the truth. Just like noone has any obligation to keep me employed, I have no obligation to anyone to pretend to be a good corporate dog (and no, I did not mean “cog”).
jrd