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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Employment Law
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Experience:  Former judicial law clerk, lawyer
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My husband was asked to "retire" at age 51 due to a major downsizing

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My husband was asked to "retire" at age 51 due to a major downsizing of the company. He took the "early" retirement hoping to get another job soon. It took over 1 year to get a job. He called after being unemployed 3 months and they said sure get unemployment which they put back to the first date, Sept, 1. 2012. He received unemployment for about 1 year. He did have a contract job for 6 weeks in there where he didn't get unemployment. Now after all this they are saying he's disqualified because he quit. He quit because the threat of being downsized and losing health care for our bipolar son who was 20 at the time. Are we able to fight this? If so, what type of documentation is needed. We did include news articles saying the company would be downsizing 30,000. He know of 3 people in his group who were let go.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

You do have the right to appeal the Unemployment Board's decision. The way to prevail is to establish that your husband did not voluntarily leave the company, and that he was forced to leave because of the downsizing. He also must show that he was looking for work and available to work during the time that he was collecting unemployment.

Look over and any all paperwork that was signed at the time your husband left the company, plus any letters or emails they sent him before he agreed to the early retirement. If he signed paperwork stating that he was choosing to leave voluntarily, that unfortunately would count against him. If he had something that essentially says "You will be terminated if you do not retire," that can be used to show that his quitting was not voluntary, because he really had no choice.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 3 years ago.

He did have to sign a waiver/release agreement. Number one on the agreement states he is voluntarily terminated. He had no input to his termination date that date was decided by the company as Aug. 31, 2012. In a faq brochure that Hewlett Packard gave us this question appears:


Q- If I don't elect the EER Program, or I am not accepted, could I still be laid off in the future?


A- Yes. The EER Program is a special opportunity being offered to eligible employees, but if you do not retire under the EER Program there is no change to your ongoing employment with HP. This includes the possibility that any employee may be subject to a workforce reduction initiative based on business needs or other factors. If you are affected by a future workforce reduction, any severance or other benefits payable will be based on then current WFR program provisions.


 


He has nothing in writing stating that if he doesn't retire he will be WFR.


With WFR/termination there is no medical. We needed the medical for our bipolar son who was hospitalized in 2011.


 


He was constantly looking for work and applying, interviewing for jobs.


He did have the contract work I mentioned for 6 weeks March/April of this year.


 


If we did have to pay back the unemployment how would that work? It would affect our taxes from last year, etc.

He can use the brochure to show that he had to take the early retirement package in order to avoid being terminated and that he didn't really make a voluntary decision to leave the company.

Unemployment will usually allow you to repay any overpayment received. You do not have to redo taxes for 2012, since you were paid the amounts shown on your tax form. However, you may be able to get credit on your 2013 return for income taxes that were overpaid.
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