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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I need to know if I have a case for wrongful termination and

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I need to know if I have a case for wrongful termination and also whether I would qualify for unemployement should I get fired instead of putting in a 45 day resignation.

I'm going through some work related issues with a company in the Sacramento CA area. I have recently been asked to resign from my company becuase they feel as though I may be better suited for another divsion within the company or somewhere else.

My position is in Orthopaedic trauma and extremities as a sales associate. The goal for me is to get into as many surgical cases for observation as possible. The person that I have been assigned to shadow is producing 90% of the Trauma business for our company in the Sacramento area where I am located. I saw a few cases with him but things came to a hault after the rep grabbed me in the operating room and man handled me becuase he felt as though I was going to enter into the sterile field. After getting out of the case I told him to never put his hands on my again. He told me I didn't have what it took and called me a slapdick. I informed management about the situation and they said that they would talk with him. Other incidents followed after this as well. He told me to cover a case in one occasion and sent me a text message at 729am, one minute before needing to make a requested phone call at 730am. The text read "Don't f**k Up." Management told me to work with the rest of the team but I wasn't able to get into as many trauma cases because there wasn't many cases to see with other reps in trauma. The main rep I was supposed to work with that had grabbed me, at this point had blackballed me and was not allowing me in any of his cases, although was requiring me to pick up products that he needed for his cases and deliver them to the front door of his apartment or at the hospitals he was working at. Management eventually said that I wasn't seeing enough cases and offered for me to move from Sacramento ca to Fresno ca with my family to work with a rep in that area, given that things went well after spending a couple different weeks there to determine if it was a good fit. I didn't want to relocate considering that I had just relocated my family 4 months earlier, from Stockton CA to Sacramento CA when I took the job. They then asked me if I thought that I might fit better into a different type of selling environment, possibly in another division and that if I did that they would help me. I said that it was possilbe that capital equipment sales could be a good fit for me. shortly after that they asked my to put my resignation in for 45 days and they would try to be a reference and keep my benefits and on the payroll until the 45 days were up. They said the other way of letting me go is not what I wanted and that it would just be ugly. Our companies policy for termination is "At Will" whether 90 days or 10 years.
I have only worked for the company for about 5 months. Before this job I have been self employed with 1099 income for about 6 years. My company doesn't have grounds to fire me unless they can let me go at will. I am not under any sort of corrective action and recieved 90% on my recent 10 week training program. My managers are asking for the letter of resignation right away. I have a wife and two kids at home to take care of and would like to protect my self with income for more then 45 days if possible.

My second concern in addition to the wrongful termination is whether or not I can decline the companys request for my resignation and at the same time be able to qualify for unemployment benefits. Ultimately what I would like is to go to another division or be compensated for wages and benefits until I receive another job.

Thanks for your time and attention to these matters.

Hello and thank you for entrusting me to answer your question. I am very sorry to hear about this unfortunate situation.

While it certainly appears as though you are the victim of company politics, I must tell you that the conduct you describe is not ordinarily illegal, nor would it form the basis for a wrongful termination claim.

Generally speaking, employers enjoy tremendous discretion with regard to how they choose to manage their business. There is no requirement of fairness in the workplace, and supervisory decisions can be arbitratry or just plain wrong without running afoul of the law.

A claim for wrongful termination would arise only if you could demonstrate that the basis for you being pushed out was a "protected trait," such as your race, religion, or gender, in which case you would have a viable claim for discrimination. Otherwise, the conduct that you describe, while certainly unfair and and unforutnate, does not violate the law.

With regard to unemployment benefits, an individual will be eligible provided that they have received enough wages during the base period to establish a claim (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

Most often at issue is the final requirement--that the claimant be unemployed "through no fault of their own." This requirement will exclude employees who quit or resign, since the employee has made the conscious and voluntary decision to become unemployed. This requirement will also exclude employees who are fired for "misconduct," which is generally defined as conduct that evidences a willful disregard for the employer's interests (e.g. showing up to work drunk or stealing).

Poor performance ordinarily does not qualify as "misconduct" pursuant to the EDD's definition. If you are fired simply for "not cutting it," or even for making some unintentional mistakes, that almost certainly will not rise to the level of "misconduct," and assuming you otherwise satisfied the requirements for benefits, your claim would be accepted.

So, to answer your second question directly, you would actually NEED to decline your company's request for your resignation if you wished to remain eligible for benefits. By voluntarily resigning, the EDD will reject your claim for unemployment because they will find you to be unemployed "through fault of your own."

If you wish to remain eligible for benefits, you must not be the "moving party" in the separation of employment. You must make your employer force you out.

I recognize that this may create more tension than going with your employer's suggestion of resigning with the hope of being reabsorbed somewhere else in the company, but this is something you must overcome if you wish to ensure your eligibility for benefits.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.


Here is a link to a very hepful guide published by the EDD regarding eligiblity for unemployment benefits: Here is a link to a table that will help you calculate how much in unemployment benefits you can expect based on your wages:

Please let me know if you have any questions or concerns regarding the above and I will do everything I can to address them. If I have answered your question, please take a moment to rate my service. This is the only way I receive credit for the answers I provide and so is very important to me.

Best regards.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

I gave you an excellent rating but it closed our discussion. Are you able to help me with my last question?

Thank you very much for the rating. I am happy to answer whatever additional questions you may have. I don't see any followup questions posted--would you mind clarifying for me exactly what you'd like to know?
It looks like you may have gone offline.

This discussion will not close and you can return at any time to clarify what it is you'd still like to know. I am very happy to assist you until you are fully satisfied I have addressed all your concerns.
Customer: replied 4 years ago.

No problem. Thank you again for all your help by the way. I am really having trouble figuring out whether or not I will qualify for unemployment based upon the amount of time I've worked. From Oct 2012 to Dec. 31st 2012 I made just over $20,000 and then from Jan. 1st, 2013 to now I have made around $15,000. Because I have only worked for this company for 5 months and for 6 years prior I was an independent contractor for 6 years with 1099 income, I'm not sure I meet the requirements and understand how the base periods work and if I fall in them correctly. I'm pretty sure the last quarter for us ended at the end of the fiscal year. Can you help me deturmine if I would qualify and how much I might possibly make with benefits if I do. I'm trying to figure out if it would be better to resign with 45 days of benefits and pay or get let go and recieve unemployment. They could probably let me go anytime after I put my resignation. There is no gaurentee of the 45 days, just a verbal offer. I also have to pay a $5000 relocation bonus back if I voluntarily leave within the first year of being hired. I figure if I do get the full 45 days of pay it would be about $10,000 but I'd still have to pay the $5000 back. My chances of getting transfered to a new division with good references with an intercompany transfer would also probably be greatly diminished if I do.

Thank you very much for your reply.

Based on these wages you definitely have earned enough to be eligible for unemployment.

The "base period" is essentially the four calendar quarters preceding the quarter in which you are let go. See here for a very helpful guide that explains base periods:

Your benefits are calculated based on the quarter of your base period in which you earned the most money. In your case, that would appear to be $20,000 between October - December. Once you surpass $11,674 in one quarter, however, you will be earning the maximum weekly benefits amount, which should be $450 per week.

Basically, you have nothing to worry about when it comes to base period wages. You will be entitled to the maximum possible amount.

Only you can decide whether it is better to leave voluntarily or have them force you out. The only thing I'll say is that I wouldn't be influenced by promises to re-hire you in another department. Such a promise is illusory and unenforceable and you have no way of knowing whether it will be followed up on in good faith.

Please let me know if I can be of any further assistance.
Customer: replied 4 years ago.

Thank You so Much! You have been most helpful!

It was truly my pleasure. Best of luck to you moving forward.