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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18790
Experience:  Employment/Labor Law Litigation
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1. Here's my understanding of termination vs. resignation.

Customer Question

1. Here’s my understanding of termination vs. resignation. For case of termination, if I wait for my current employer to terminate me while I’m on paid administrative leave, then I’m eligible to receive unemployment benefit from my current employer after termination. The downside is, I will have to report to future employers (if asked) that I have been previously terminated which is clearly disadvantageous to my image. On the other end, if I choose to resign now while I’m on paid administrative leave, I will immediately stop getting paid by the current employer that is currently doing the investigation on me. However, in the future, I can always correctly claim that I have resigned from and have NOT been terminated by my former employer. So there is clearly a trade-off here. Is my understanding correct?
2. Based on the above, assuming my understanding is correct, should I immediately resign and accept the new job from this no-compete company? The motivation is, to preserve my image and be able to legally and accurate claim in the future that I have never been terminated previously.
3. If I resign now, then my present employer will NOT be able to terminate me anymore. What is then the likelihood that my present employer will come back to sue me after I start my new job?
4. Given the following situation, if my present employer sues me, what is it that they want to gain from this lawsuit?
• Was he a legal employee while he downloaded the data? Yes.
• Has he submitted a formal resignation letter, in writing? No.
• Has he signed the exit agreement stating he no longer has any work documents in his possession? No.
• Has he verbally revealed his intent to leave his present job? Yes.
• Did he have any malicious intent such as broadcasting or selling the data to competitors? No.
• Did he come from a competitor company? No.
• Is he going to a competitor? No.
• What is the amount of damage this employee has caused the company? None, since the USB stick has been returned to the HR department already.
• Has he been in complete cooperation and compliance since investigation took place? Yes.
5. Since I have cooperated and turned in my USB stick immediately, there is really no damage. Because there is no damage, what motivation does the employer have to pursue a lawsuit against me?
6. Try to pretend you are the employer attempting to sue me in addition to firing, would you do it?
Submitted: 7 months ago.
Category: Employment Law
Customer: replied 7 months ago.
Issue Description:On Monday I privately & only verbally informed my boss I'm considering leaving.On Tuesday, I downloaded details of the project I worked on, onto my personal USB stick purely out of sentimental reason with NO malicious intent to share, publish or profit from it after my departure.On Thursday, the company found out about the improper downloading. Upon request, I have immediately cooperated and turned in the USB stick to the HR department. I'm now on administrative leave (paid) while investigation is being performed, to have the downloaded files removed from the USB stick.On Friday, I emailed HR letting them know my intent to fully cooperate with the investigation. To prove I have never had any malicious intent, I offered to the HR that I could provide my phone record, email record, social media chat history, bank and credit card statements...etc.Further Details:1. So far I have NOT submitted a formal resignation letter. I have NOT signed the exit document indicating I no longer possess company sensitive material with me.
2. I'm NOT a disgruntled employee and is moving on, only because I have lost interest in what I'm doing at my present job.
Expert:  Allen M., Esq. replied 7 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

1. No that is not necessarily true. Termination can result in losing the right to unemployment. The matter would have to be put to the unemployment hearing officers, to determine if your actions constituted misconduct sufficient to block your unemployment. So, allowing the termination certainly does not guarantee unemployment eligibility.

2. On your facts, I think that resignation is probably the best option. You actually did download the documents and while nostalgia isn't an entirely unreasonable argument, it may not be convincing.

3. That really is independent of your decision to resign. They would only accept the expense of suing you if they could actually prove some damages. If you've returned the file, they can't really show damages.

4. No damages there, so the suit wouldn't be worth bringing.

5. None.

6. No. I'd recommend to the employer not to sue due to the entire lack of damages.

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