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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 36155
Experience:  Retired (mostly)
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After you sign a Separation Agreement and General Release,

Customer Question

After you sign a Separation Agreement and General Release, can you still get your Unemployment ?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.


The answer depends on whether the employer offered you the "Hobson's Choice" to either quit or be terminated/fired from employment. If yes, then you are entitled to unemployment benefits, because your termination was involuntary. If no (i.e., you resigned under conditions in which your employer would have retained you, had you not resigned), then you are disqualified from receiving unemployment insurance benefits, because you voluntarily terminated your employment relationship without "good cause" (a clear justification attributable to the employer's wrongful acts or omissions).

If you are concerned about the possibility of being tricked into a voluntary termination, then you can write something above your signature on the separation agreement like:

  • I am accepting this agreement based upon my receiving representations from my employer that I would be involuntarily terminated from employment regardless of whether or not I accept. If I misunderstand the representations which cause me to accept this agreement, then my acceptance is hereby rescinded.



Hope this helps.


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Customer: replied 2 years ago.

the Hobson's choice is not mentioned with in the Separation Agreement and General Release, so this would mean that my husband would get unemployment, after he signs the paper,since he did not resign or quit.


Per my Husband they did not offer the Hobson's Choice nor was it put in the Agreement.

Expert:  socrateaser replied 2 years ago.

I want to make certain that I haven't confused you. Please don't take this as condescending. What I mean by "hobson's choice" is simply a common way of saying that your husband wasn't actually offered the option of remaining with the employer. Example:


  • Employer: Mr. X, we're downsizing your department. Feb. 1, 2013 will be your last day. We are willing to offer you a separation agreement in exchange for your waiving any future right to sue us for any reason. Whether or not you accept the separation agreement, your last day is still Feb 1.



The agreement may not say anything about the choice concerning termination. But, unless it does, your husband may have to prove to the California Employment Development Department (EDD) that he did not resign -- if the employer claims that your husband did resign.


The botXXXXX XXXXXne is that unless the separation agreement expressly states that the employee is being involuntarily terminated, then the issue is unresolved, and could create room for a dispute that will have to be resolved by the EDD administrative law judge -- which means that your husband could win or lose the dispute.


So it's up to your husbsand to try to protect his interests by placing something into the separation agreement that expressly states that your husband's termination from employment is at the employer's instance -- i.e., he's being laid off, no matter how he may want to avoid the inference.


Hope this helps.


Expert:  socrateaser replied 2 years ago.
Hello again,

Would you be so kind as to provide me with a positive rating, so that I can receive compensation for my answer.

Thanks in advance.

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