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I have been asked to choose between termination and

resigning . if i resign...
i have been asked to choose between termination and resigning . if i resign, i get two weeks severance, and have to sign release of liability, i live in CA not sure what to do. If terminated i could file for EDD benefits, but they can deny them since i was terminated not laid off
JA: Is the employment agreement "at will," union, full time or part time?
Customer: at will
JA: Anything else you want the lawyer to know before I connect you?
Customer: full time
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Customer reply replied 2 months ago
the reason for termination is i am a nurse. I was helping a colleague understand a DMV form, being in a rush and getting her to understand what patient wanted i marked the form, i turned to next page,realized it was signed already by the provider. Since it was signed, i told her she should print out new form and give to provider to fill out and show her my recommendations. When she showed to provider, she filled out new one and gave to pt, but sent the one i marked to compliance and it was considered that i altered a document even thought it never went to patient or dmv. for this they concluded i had altered the form regardless and that is reason for termination.
Answered in 5 minutes by:
8/29/2017
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 13,086
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

For the purpose of unemployment benefit eligibility, the law makes no distinction between "termination" and "layoff." All that matters is that the employee is not unemployed through fault of their own, meaning that they did not resign or get terminated for "misconduct" (i.e. something intentional or reckless that the employee should have known would result in termination). "Misconduct" is a high standard that does not cover honest mistakes or simple "poor performance." Things like showing up to work drunk or stealing are good examples of misconduct.

As for whether to accept the severance, understand that employers have no obligation to offer any severance at all, so any severance offer is usually better than no severance. That said, you will be waiving legal claims, but the thing about waiving legal claims is that most employees do not have any claim for wrongful termination when they are let go. This is because employment in the state of CA is "at will" absent an express agreement to the contrary. At will employment can be terminated for any reason not amounting to discrimination on the basis of a legally protected trait (race, religion, gender, etc.) or retaliation for engaging in certain forms of legally protected conduct (filing a wage claim, taking FMLA leave, etc.). It doesn't matter whether the basis for termination is fair, reasonable or even true.

So, unless you have reason to believe you were terminated because of a protected trait or activity as defined above, signing a release probably doesn't mean you are "giving away" much of anything, and so would typically still be in your best interest. Obviously, every case is different and this is only general information for the purpose of general guidance, but I think it gives some perspective.

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.

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Thank you for the additional info. Since you have an explanation for the form issue, I'd think it is unlikely that this would result in a disqualification from unemployment benefits. Each case is different and it's impossible to predict results since the EDD makes benefit determinations on a case by case basis, but this is just my general assessment.

I hope this helps. Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service (using the stars at the top of the page) so that I may receive credit for assisting you.

Very best wishes.

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Customer reply replied 2 months ago
thank you. I guess my biggest concern is if i am terminated not getting benefits, but there is no way to know beforehand. Should i ask to see termination letter and the release of liability before deciding? the HR lady said when i decided on resignation they would draft the form to sign, but shouldn't i see it before i can make a decision?
would it be advisable to ask for more severance if i do sign? they are only offering two weeks, i was only there 18 mos.

Thank you for your reply.

Choosing to resign is the one thing you can do that will impact your ability to collect benefit, since when one resigns they are unemployed through fault of their own as they have made the voluntary decision to become unemployed.

Now, the EDD doesn't just look at the superficial classification of a separation of employment, they look at the underlying circumstances. So in theory it's possible to resign on paper but still collect benefits. You would just need to prove that if you didn't resign you were going to be fired and thus you are still unemployed through no fault of your own because nothing you could have done would change the fact that you would be unemployed.

If you can't avoid havign the severance release refer to your separation as a resignation, you would typically want to make sure that this is well documented through email correspondence with your employer (i.e. "I understand that I am resigning in lieu of termination). You can show this correspondence to the EDD to convince them that you are still unemployed through no fault of your own.

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You can always ask for more severance, but keep in mind you have no legal right to severance and employers generally don't have a strong incentive to pay much in severance unless they believe they have exposure for wrongful termination. Here, termination would be legal, even if unfair so you probably don't have much negotiating leverage.

I hope this helps. If I have answered your questions, please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page.

Patrick, Esq.
Category: Employment Law
Satisfied Customers: 13,086
Experience: Significant experience in all areas of employment law.
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