Why are people "resigning" when they've clearly been fired?

Factual Questions
21

Read the question at the beginning of the article. Someone was given the option to resign or be fired, resigned, applied for unemployment anyway and was eligible because of the forced resignation.

Yes , the point is that both the person and employer will say they resigned - but unless there are other circumstances ( like severance pay in return for not applying for unemployment) my former employer can’t prevent me from telling the truth, that I only resigned because I was told “resign or be fired”
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22

In Canada, generally, you can only be fired (“terminated for cause”) for cause - i.e. theft, insubordination, job abandonment etc. They can terminate you without cause for other reasons, but the requirements to pay separation pay are much more strict that in the USA. It can be up to a month for every year service for more specialized jobs where it is harder to find an equivalent job. Even for ordinary jobs, two weeks or more (or a week for each year) is not uncommon. I also don’t understand the “lose pension” bit - your pension entitlement is money you earn each year that you work. they can no more take it away here, than they can steal your retirement savings bank account.

If you resign, or are fired for cause, you are ineligible for unemployment. The employer indicates the reason for termination - quit, fired for cause, or layoff - on the form.

I suspect the “resigned, not fired” is exactly - that; the person has come to an arrangement where they can claim they amicably parted ways with previous employer. A termination for cause can look really bad on a resume - better to GTFO with a nice reputation. If the person resists resigning, and the company must fire them - it is a tricky thing. Unless they can unequivocally prove a cause, they could wind up in court, and a court will decide whether the firing was for cause; if it is not, the company could be on the hook for some serious damage to the person’s reputation. The term “Wallace Damages” in Canadian employment law refers to the classic case where someone was marched out of the office and treated like crap for no good reason, and subsequently was awarded 24 months salary. And there’s no such thing as “he was a really poor performer”; either there’s legitimate cause to fire they guy, or it’s a layoff with termination pay. Trying to insist it’s “partly his fault” could bring out even harsher penalties. The courts generally find the employer, with an imbalance of power, has a duty to be fair with employees.

There’s also “constructive dismissal”. Essentially demoting an employee, whether by title or responsibilities or salary, means that they are effectively fired from their current job and rehired at the new one - so if they choose not to accept the lesser assignment, they can sue as if they were let go, and the employer could be on the hook for whatever the court deems to be appropriate separation pay.

You could fire someone for poor performance or other problems like frequent lateness; but to do so, you need to document repeated disciplinary measures and opportunities presented to the employee to try to correct their behaviour. You can’t tally up their latenesses and suddenly one day spring it on them out of the blue and fire them.

Essentially, I’m often amazed at how poorly the USA values workers and their rights compared to the civilized world.

Generally if it’s not clear whether the employer has a case for cause, or if they just want to get rid of the guy, they make an offer. “You’re heading out the door, here’s what we offer”. They may even negotiate. As one HR guy said to me, the HR lawyer’s job is to figure out an amount that’s not too much, but high enough it’s not worth the hassle of going to court for more. (I knew one fellow who was “let go” and offered 2 months’ pay after they treated him like shit; they thought as a recent East Indian immigrant he’d not know his rights. I pointed him to a lawyer who was a big-wig for the local NDP party, and they quickly settled on 6 months.)

Most places I worked had a specific policy - only confirm, “yes they worked here”, how long, and job title. Salary? Sorry, they don’t even want current employees discussing that. It’s nobody else’s business. If you say something that the ex-employee disputes that causes him not to get the job, he can sue. If you say he’s Ok and he turns out to be a dud, the employer you misled can sue you. Best to stay out of it. Rehire? I’ve seen lots of crappy employees eligible for rehire, and plenty marked “no” for petty reasons. (“He quit when I was shorthanded, it was hard to find a replacement”. Sorry, that’s your problem, not his.) Some employers simply refuse to rehire people who quit.

23

I should also point out that while it can’t hurt to be truthful when applying for a job, trashing your previous employer during a job interview would be a serious red flag for many employers. You can say “we had a difference of opinion” and leave it at that. Many employers are going to think “If he says that about them, what would he say about us when he quits here?” Or, perhaps they will wonder if the truth is as one-sided as the applicant makes it out to be. With many disagreements, it takes two to tango.

24

While an employer may be likely to win a UI case, it’s usually not worth the time and effort for them to follow up. I’ve had managers swear they’d do whatever necessary to prevent a terminated employee from receiving a UI claim, but when the paperwork passes my desk, and they’ve cooled down, they state it’s not worth pursuing.

I once got asked to testify on behalf of a former co-worker in a wrongful termination arbitration. When her former manager (HR Director) heard that both another co-worker and I were in the waiting room, she backed down and dropped the dispute on the spot. From an employers standpoint, not only did they lose the dispute, but the time and effort for the manager to prepare for and attend the arbitration.

BTW, the Executive Director of the company was an active lawyer and so the decision for the manager to appear at the arbitration wasn’t completely with consideration.

25

As for being able to say anything I want, either as an employee or a manager, if it’s company policy (very common), not to say anything about a former employee, I could be disciplined or terminated myself for violating that policy.

A couple of years ago, when I voluntarily resigned on very good terms, my manager said she would give me a glowing review to anyone who called. When she did receive a call from a potential employer, she cited company policy not allowing her to do anything more than confirm my former employment there. I fully respect her adherence to policy and my last phone conversation with her was as congenial as we’ve always been.

Even my good friend of many years told me that while I could use him a reference, he would never answer any personal questions about me and I’ve taken his tact when someone calls me about someone I know. Too much potential for being called to testify for or against someone in an arbitration or worse.

The one exception I’ve made over the past few years is I’ve been called as work reference for a former subordinate of mine. I always give her a glowing review, but preface my statements with, I left the company (terminated) before she did and therefore these are my personal opinions, she was there before me and I only worked with her for six months.

26

Termination should in general not affect any retirement benefits you have become vested in. Certainly if your company only does a 401(k) (as mine does), they can’t touch it.

As for defined benefit plans:
Per one web site, you could in theory lose your Federal pension if you were convicted of a crime (Resign, retire or be fired?)

But in general, your defined benefit plan would ultimately pay the same if you retired or were fired.

If you “resign”, you might be in a better position to negotiate continued health coverage or the like, or to be treated as still “on the books” if your 401(k) matching has gone to an end-of-year payout (my company did that some years back; if I leave voluntarily OR am fired earlier in the year, I only get my own contributions).

And of course whether fired or resigning, you lose whatever contributions you would have made later, any contributions the company might have made later, etc.

To the company’s side of things: It’s to their benefit for you to “resign”. Makes them almost certainly lawsuit-proof, and since this prevents you from getting unemployment, that saves them money also (their rates would go up the following year if someone made a claim).

27

And that is the crux of the matter. Very few companies are willing to pay the legal expenses of even a winning lawsuit just to help some stranger out. And any such lawsuit depends on the company having kept good records. What benefit is it to them to have that assumption tested?

It might be sad that this belief exists, but it is to everyone’s advantage. HR gets to take the easy way out. the company reduces it’s legal exposure. The hiring company is free to judge the length of the silences on the phone as it wishes. win win win.
If the ex-employee wants a positive recommendation just give a former supervisor as a personal recommendation. Ask when you leave to make sure. When I received such phone calls and had nothing but good to say, I would. If there was any hesitation on my part, I would refer the call to HR. That got the message across.

It gets far more difficult with security clearances. There you really need to be careful. You shouldn’t withhold any information, though you can if you must, but you are liable for anything you say. We had one ex-employee sued for what he said about another person in a security interview and the person being discussed was never an employee-just someone our guy had worked with. The comments were not flattering and the clearance was denied. Then our guy left the company on good terms and moved. Then got a court summons and had to pay for his return and a lawyer out of his own pocket-he was no longer our employee. Bad new all around.