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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5626
Experience:  Exclusively practice labor and employment law.
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On 10/13, my employer asked me to resign or be fired with my

Customer Question

on 10/13, my employer asked me to resign or be fired with my last day being 10/21. he said that if I don't resign then he will fire me and make sure I do not get unemployment. He asked me to let his know my decision by 10/16. I'm not sure how to respond to him.
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.

What you need to know essentially is that either a forced resignation or a termination will qualify you for unemployment, assuming they weren't because of your misconduct on the job. Thus his theory that he'll make sure you don't get unemployment makes no sense. He could protest your unemployment but if you could show to EDD that you were terminated you'd still be granted benefits. However, you could be denied unemployment if you resign voluntarily.

So the only thing I can think that he is doing here is trying to trick you into signing something that you are resigning, then protesting your unemployment when you apply stating you voluntarily resigned. The best I can tell you is to either make him terminate you or if you do resign, make sure there is writing somewhere (hopefully signed by you and him) that the resignation is not voluntary.

Customer: replied 1 year ago.
What about the termination in advance issue? Let's say my employer says on 10/16 that I am fired as of 10/21. Doesn't he have to fire me immediately? What if 10/21 comes and goes and he doesn't officially fire me? Am I just supposed to wait my employer out? What should I do if he doesn't have my final check with paid out pto at time of termination?
Expert:  John replied 1 year ago.

They don't have to fire you immediately. You have to work until the last day essentially because the "intent to terminate" can be withdrawn, and then he'd claim that you just quit to unemployment. So it would be advisable to wait it out...even though that's probably not what you want to do. If you final check with pto is not paid out you bring a wage claim with the state.

Expert:  John replied 1 year ago.

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