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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
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Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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Hello, On July 3, 2013 I was offered an exit agreement from

Resolved Question:

Hello,

On July 3, 2013 I was offered an exit agreement from my employer to agree to voluntary resign my position and be paid my normal wages through 8/22/13. The agreement also stipulates that once I sign the agreement I no longer have to come to work but only to work with my manager to transition my work. And the agreement also notes that should I apply for unemployement compensaion for the period beginning 8/22/2013, my employer will not object to my receipt of benefits from the applicable state agency.

My employer is offering this agreement in lieu of temination. I am currently on the final level of a Performance Improvemen Plan. My employer told me that if I do not sign the Exit Agreement that I will be terminated on 8/2/13 or shortly there after.

My concern is if I sign the Exit Agreement, agreeing to voluntarily resign, this will this be considered a voluntary quit in the state of Ohio and prevent me from being eligible for unemployement compensation.

Please respond with advice. Thanks for your assistance.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. You are right to question what your employer has told you since it is both misleading and incorrect. It is misleading in the fact that they imply that if they do not object to your unemployment claim that you will thereby qualify for unemployment. The fact is that although the employer can dispute or not dispute a claim, it is the State that decides if someone is eligible for benefits based on the facts. The statement that is incorrect, is their statement the a voluntary quit in lieu of termination will make you eligible for UI benefits. That is not the case.

The State, on the other hand, gave you better information, although no one, other than the person who reviews the facts for the UI commission after they have gathered them all, or an appeal hearing officer, can tell you with certainty whether or not you will qualify for benefits. However, to qualify for UI benefits, a claimant must either have been terminated without "cause" or misconduct, or they must have quit for "good cause" attributable to the employer. In the first case, if the claimant is denied UI benefits, it would be the employer that would carry the burden of proof to show that the employee intentionally, or through gross negligence, failed to perform their job properly.

In the case of a quit for "good cause" attributable to the employer, it is the employee who carries the burden of proof to show that they quit because the employer did something unlawful or so severe that a reasonable employee in their same position would have quit. I can tell you that resigning in lieu of termination, unless the termination is illegal, is not good cause to quit. The types of things that are good cause are if the employer is violating the law, like wage laws or discrimination laws, or if they change the terms and conditions of employment in an extreme way and the employee cannot comply because of economic, health or family reasons.

So, although there are no guarantees, if you want to maintain some chance that UI benefits, you would want to make them terminate you. That said, they are offering you some extra money to resign, so that, and not having to put that you were terminated on applications might be worth it to you. That is up to you.

Please let me know if you need any clarfication. I would be glad to assist you further if I can.
Customer: replied 1 year ago.

Thank you for the quick response. I have another question related to voluntary quit in lieu of discharge. I have been reading up on some cases in CA similar to mine and here is what I have found. It looks like, in CA anyway, my unemployment claim would be approved based on the information provided below. Can you please comment on the copy and paste regarding the case cited below; if you agree, disagree and how this might help with approval of my unemployment claim. Thank you.


 


Quit in Lieu of Discharge


Title 22, Section 1256-1(d), provides:



An employee who leaves work when asked by the employer to either resign or be fired, or an employee who resigns rather than agree to a forced leave of absence, has not left work of his or her own free will. In these situations, since the employee did not choose to quit, the employer is the moving party in the separation and the employee becomes involuntarily unemployed.



When an employer allows a claimant to resign rather than be discharged, the option is usually given because the employer does not desire to affect the claimant's future employment possibilities with other employers by reporting his termination as a discharge. All such "resignations" will be characterized by the fact that the claimant had no choice relative to remaining employed. If he didn't resign, the employer would have discharged him. In such cases, the claimant's leaving is involuntary and will be treated as a discharge

Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for the reply. California employment law and unemployment law is vastly different from Ohio's and most other states. The law in CA is always more favorable to the employee than other States laws are. That said, it could be that if the appeal hearing officer believes that you were being let go "without cause" and you resigned in lieu of that, then they would put the burden on the employer to show that your termination would have been because you intentionally or through gross negligence failed to perform your duties correctly.

But ultimately resigning in lieu of termination is no more favorable, and could be less favorable (because of the burden) than being terminated. Again though, there are no guarantees that the Hearing Officer, should you be initially denied benefits, would hold one way or the other in terms of your termination or resignation.

So, just to be clear, California law holds no precedent in Ohio.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17139
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
Marsha411JD and other Employment Law Specialists are ready to help you
Expert:  Marsha411JD replied 1 year ago.
Hello again,

I wanted to touch base with you and let you know it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed in the future. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.

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