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Allen M., Esq.
Allen M., Esq. , Employment Lawyer
Category: Employment Law
Satisfied Customers: 18627
Experience:  Employment/Labor Law Litigation
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Hello, My company asked me to resign. I asked if they could

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My company asked me to resign. I asked if they could lay me off instead. They said they could not lay me off because they still had funding for my position for 6 months. They said if I did not resign they would terminate me for my co-workers complaining about my conduct.
I would like to know if a company can lay people off at any time or if it is true that they could not lay me off because of funding or because of coworkers complaining about my conduct.
Does the fact that they refused to lay me off mean they will contest unemployment benefits if I resign and file unemployment saying I resigned because of a poor working environent?

They gave me a release of claims form to sign in exchange for one month's pay. What do I lose if I sign it? I have a repetative motion injury to my arm (tendonitis). They paid for some ergonimic aides but I never looked into worker's compensation or anything like that.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 2 years ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines.

There is no law that controls whether or not an employer can lay someone off or not. The concept of a "lay off" is entirely company created and is really no different than a termination legally.

So, I'm not sure why you believe it is preferable for them to lay you off rather than terminate you. If they terminate you, you can still file for unemployment. They can try to block your unemployment if they terminate you, but they have the burden of proving that you engaged in misconduct and that's a high burden for them.

If you resign, they absolutely can block your employment and your argument about a poor working environment is very difficult to make work in the present climate (so many people unemployment, the state expects people to be more willing to keep poor jobs, just to have a job).

If you sign the release of claims, you can't sue them for discrimination or worker's compensation claims. You can still file for unemployment, unless the release of claims also contains your voluntary resignation. I wouldn't 't sign it then. Your unemployment could be worth more than one month's pay.
Customer: replied 2 years ago.

I guess I thought if they terminated me as a lay off it would mean they could not contest unemployment benefits but if they terminated me for misconduct they could contest unemployment benefits because I deserved to be fired.

What they have to prove misconduct is some text messages that I sent to a girl I used to supervise. I sent them to her after hours and they were of a personal nature, but she gave them to the administration to get me fired. They also claim to have several complaints from other coworkers about my conduct during working hours (yelling, swearing, being too nosy about what they are working on, being confrontational, not sharing enough information when trying to coordinate equipment use). I do not feel that the correct complaints procedures were followed because complaints were taken direclty to the CEO, but feel it would be hard to prove this.


So given all of this, what are your recommendations?

Expert:  Allen M., Esq. replied 2 years ago.
What matters is why they are terminating you.

They can "terminate" you without giving a reason for the termination, not call it a lay off, and not challenge your unemployment if they wish.

They can "lay" you off, but when you file for unemployment, they can challenge it.

Nothing, legally, about a lay off stops them from claiming that they actual reason you were laid off was misconduct.

Again, it is just an artificial term for what amounts to a termination, no matter what they call it. It only has some internal meaning for the company itself.

The fact that these comments to this girl were during off hours is irrelevant. You were her supervisor, so it actually legally doesn't matter whether or not you were at work. The comments are likely going to be enough to be misconduct by themselves.

In terms of complaint procedures, the law doesn't impose any specific complaint procedure on an employer. So, if the employer deviates from their own regular policy, that isn't going to be a basis to put down the evidence that was derived from that deviation.

On the facts you've outlined here, you're probably going to be best served by accepting their offer of one month's pay, in return for their severance and a positive letter of reference. I think that that gives you the best chance of finding future employment.

If you force them to terminate you, with those facts, they'll almost certainly be able to block your unemployment and they may consider telling prospective employers about your comments to this girl you supervised, which could keep you from regaining employment (yes, they legally can tell prospective employers about that, if they want). So, if you can have the release contain something about you having a good or neutral reference, with no mention of the comments, that would be the best option for you going forward.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18627
Experience: Employment/Labor Law Litigation
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