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NY Labor Code Section 595 provides with respect to unemployment benefits: "No agreement by an employee to waive his rights under this article shall be valid." In other words, even if an employee signs a severance agreement in which they waive their right to collect unemployment benefits, that waiver would be unenforceable.
There is another issue, though. Unemployment benefits are only available to those individuals who find themselves unemployed "through no fault of their own." When an employee resigns, they are considered unemployed "through fault," since they are making the voluntary decision to stop working. So, if your severance agreement says you are resigning and you sign it, that could be used as evidence that you are unemployed through fault of your own and you could be denied unemployment on that basis.
Now, the good news is that the unemployment office looks at the UNDERLYING facts in determining whether someone is unemployed through no fault of their own. So, while the language of a severance agreement will certainly be taken into account and likely given considerable weight, it is generally not the be all end all, and if you can provide evidence that this separation of employment was truly involuntary, you can very possibly overcome the "resignation" statement in the release. You are taking some risk, though, signing the severance agreement with that clause in it if you do plan on collecting unemployment.
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