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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I was terminated Friday and given a Separation Agreement to

Customer Question

I was terminated Friday and given a Separation Agreement to review and sign. The agreement provides Severance and Health Care benefits in exchange for 'General Release of Claims and Covenant not to Sue'. The first section says "Termination of Employment:Resignation" which is not what happened. Later, after presenting details of the severance and healthcare benefits, it states "Also in consideration of payments made hereunder, Emplyee agrees not to file a claim for unemployment insurance benefits with the State of New York". Am I being taken advantage of, or is this just a dollars and cents equation? My understanding was that even if I resigned, I might still be eligible for unemployment in NY. Don't want to sign that away if I don't have to.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

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.

I hope that you find this information helpful. 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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

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Expert:  Patrick, Esq. replied 1 year ago.

Are you still with me?