you're fired! sort of…

August 27, 2009 7:43 PM

Was i fired?

my boss scheduled an appointment between her, me and the head of HR today at 5p. my first thought was a meeting with HR at 5p can only mean that i'll be fired. this was not entirely out of the question due to many factors including, but not limited to, the fact that half the time i go into the office, i think i am going to be fired (and i am not the only one at the company who feels this), our company sales were down 30% in sales last quarter (and in fact, has never turned a profit), the sudden firings that have occurred within the company, etc.

when i walked into the meeting, the head of HR gave a monologue about how they liked me, thought i was a good person, am very talented at what i do but that there have been ongoing issues that they didn't see improving. there were some accusations made about my performance as of late (some true, some not true—but i was not interested in defending myself against them, for reasons made more obvious below). he went on to tell me how he and my boss have been in meetings about how to make things work with me and the company, that i didn't seem to be thriving within the corporate environment there and then told me they would like to switch me to contract status (though not full-time). he asked me what i thought of the idea. i said that sounded great—pretty much solely because i had been so miserable at this company since january that it was beginning to affect my health. and believe, me i am relieved and feel as though i have been given approval for release from the asylum. my last day won't be for another few weeks as i wrap up projects and after i work out with my boss the logistics and fee structure for my new status.

i view this as being essentially fired or let go from a full-time position and therefore will be eligible to claim unemployment benefts (the head of HR also let me know that i would be eligible to receive COBRA benefits as well). whether i am hired in a contract capacity later or not (though i believe i will be getting contract work from them) but i have never trusted this company and wouldn't put it past them to try to deny me unemployment benefits in the end.

so my question is, essentially, i was fired, was i not? and thus, i will be eligible to collect unemployment, am i not?

posted by violetk to work & money (27 comments total)

where are you?
posted by nadawi at 7:46 PM on August 27

that i didn't seem to be thriving within the corporate environment there and then told me they would like to switch me to contract status (though not full-time).

Yep, you were fired.
posted by jayder at 7:46 PM on August 27

You weren't fired.
posted by iamabot at 7:47 PM on August 27

Yes, you were let go from your full-time job. You should be completely eligible for unemployment, and they should have offered you their standard severance package. If they didn't, ask for that before you do any more work for them.
posted by drjimmy11 at 7:48 PM on August 27

To clarify, being fired generally means you don't get to collect unemployment benefits or engage for cobra. You were laid off an offered a contract position.
posted by iamabot at 7:48 PM on August 27

(I think there might be some confusion over the use of the term "fired." Some people may be taking that to mean, "fired for cause," which is when they fire you for doing something really bad and you can be denied unemployment. I can't imagine any scenario where a company could say they fired someone for cause and then offered them contract work. "Cause" is a real, verified, documented history of incompetence or misconduct, not some vague grumblings about how your work could have been better.

Also, if this is the first you heard of these alleged "problems" and there is no paper trail then you should be fine. They could fight the claim if they are asshole enough, but they would lose in any jurisdiction I know of.)
posted by drjimmy11 at 7:53 PM on August 27

Accusations about your performance indicated laying the groundwork for firing you for cause, which denies you unemployment. The way I read what you wrote is essentially them offering a carrot and stick for your dismissal. The carrot is continued contract employment, the stick is denying you unemployment by claiming cause. They were trying to split hairs on letting you go, prepared to fire you if necessary, otherwise just 'making you redundant' or some such twaddle.

In its own way, it's a very dirty move because they owe you some severance if they lay you off, but if they fire you and you contest it, the costs are likely higher. In effect, they got you to quit by accepting their proposed change.

If you're happy with that, and it sounds like you are, then move on to greener pastures. Some employers just aren't worth the grief. But I bet if you talked to a labour lawyer, he'd outline about eight different ways to sue them.
posted by fatbird at 8:07 PM on August 27 [1 favorite]

Just to clarify, it appears that your question doesn't really seem to be "was I fired?" but "were the circumstances of my termination/dismissal/demotion to contract status/etc. such that I will be eligible for unemployment benefits?".

Right?

If so, like someone else said, in order to do a halfway-decent Googling, the state you're in is necessary information.
posted by WCityMike at 8:09 PM on August 27

i'm in Oregon.
posted by violetk at 8:10 PM on August 27

The company does not award you unemployment benefits - the state does. Thus, there is no way your company can "deny you" unemployment benefits since that is not their decision. From what you have described, it seems reasonable that you would be awarded unemployment benefits.

You will also be eligible for COBRA. It is not true that people who have been fired for cause are ineligible for COBRA. To be ineligible for COBRA, you must be guilty of "gross misconduct," which is not defined in the COBRA regulations. Generally, though, you must have done something with the explicit intent to harm the company, or something so grievously wrong it "shocks the conscience," to reference a line in case law. Being fired for low performance is not gross misconduct.

And yes, I agree that you were involuntarily terminated, as we (in)human resource professionals put it.
posted by pecanpies at 8:24 PM on August 27

Also, in many cases, individuals who were fired for doing something wrong, rather than just for low or non-performance as in your case, are often denied unemployment. For example, in my state, which is quite employer-friendly, an employee who was fired for surfing the web all day instead of working would almost definitely be denied benefits. So, as you see, being fired isn't at all a guarantee you're eligible.

To repeat what I said previously, though, I doubt you'll be denied benefits simply for being a low performer or not fitting in with the company culture.
posted by pecanpies at 8:27 PM on August 27

yes, i know it's not the company that awards unemployment, but the state. i meant would they try to contest my application. the company has done some pretty shady things to past employees as well as to me (not related to my performance) so i am very leery of them.

pecanpies—should i then be asking them about severance? no reference was made to it in the meeting.
posted by violetk at 8:33 PM on August 27

You are eligible for unemployment, but to some extent the contract work may reduce what you receive each week. You were terminated. File.
posted by JohnnyGunn at 8:36 PM on August 27

Gotcha. Some people do really think the company decides whether or not you get unemployment, so I just wanted to clarify. I'm unfamiliar with Oregon, unfortunately, since I'm out East. Decisions can vary widely by state. If/when you apply for UI, you will be asked to explain why you were terminated. I'd simply put that you were moved from regular, full-time employee status to part-time contract status, with no guaranteed hours. If your employer contests it, they'll have a hard time arguing that you were fired for cause...yet they were fine paying you to do contract work. That just doesn't add up.

I "fight" UI claims all the time when it comes to employees who actually did something harmful, so I am familiar with the process. Your employer may not even respond to the claim. It's hard to say. If they do, and for whatever reason you are denied, make sure to appeal the decision. I've seen a lot of decisions reversed on the appeal, for whatever reason.

As far as severance, my gut says that's going to be a no-go. You can ask, but I wouldn't expect it. Since you were involuntarily term'd, you may be eligible for the COBRA subsidy. If you are eligible, this means the government will pay 65% of your COBRA premiums through the end of 2009. You can google ARRA COBRA subsidy for more info. If you're taking COBRA, make sure you pay close attention to all due dates for forms, premiums, etc. - they are 100% non-negotiable.

Good luck...as someone on the other side of the table, I know this is scary. With any luck you'll find something while doing contract work for them, and be able to leave all this behind.
posted by pecanpies at 8:41 PM on August 27 [1 favorite]

Being fired for cause does *not* mean you don't get UI. Typically UI is denied in situations where the person is fired for misconduct (stealing, violence, intentionally defying orders). An ordinary termination with alleged performance issues -- UI is typically granted.
posted by ClaudiaCenter at 8:55 PM on August 27

You weren't fired, but you're being shown the door. Since you still have employment, I doubt you'll be able to file for unemployment.

Best of luck to you.
posted by 2oh1 at 9:56 PM on August 27

You can file, but if Oregon is anything like Illinois if you make above a certain amount in your contracting work for them it will pretty much cancel out your ability to collect unemployment.
posted by MsMolly at 9:57 PM on August 27

1) don't sign or agree on anything before 2) you discuss it with a lawyer.

Really, DO IT. Once you sign anything, it will stay with you forever.
posted by madeinitaly at 10:41 PM on August 27 [1 favorite]

Ooh. Oregon. A tricky state only because of that whole 'we can let you go for no good reason' thing we have, thus making it rather difficult to collect unemployment.

Here's how I would look at it, however.

Maybe you were fired. Maybe you weren't. If you were, you're company doesn't hate you and are giving you a way to collect unemployment and COBRA, which in Oregon, is no small thing. They could have just as easily said 'see ya' and that'd be the end for you.

I dunno, maybe I'm in the minority, but I almost see it as a win-win. Even if you go on contract basis, you could probably still collect unemployment. COBRA will cost you an arm and a leg, I'm guessing, so that kind of sucks, but you can still get paid for contracted work while collecting...I think?

Oregon is so weird about this shit. But if nothing else, getting out of a job you absolutely hate without outright quitting and screwing yourself, your money and your resume is not that bad of a deal...
posted by Lutoslawski at 11:04 PM on August 27

Two separate things: (1) You were laid off. (2) Your former employer has also suggested a contract for future work.

While you're waiting for their written contract offer (ahem) you're unemployed.

So, as you're wrapping up, ask about whatever usual termination benefits an ex-employee at your firm usually gets, which you should receive no matter what vague promise of future-maybe they have made. You should get treated the same as anyone who is laid off or otherwise let go for a non-heinous reason. Treat it like a "silly formality" if you like, but get it done the textbook, normal way.

Then, while serving out your last two weeks and waiting for their contract offer, and while deciding whether you want to accept it...apply for state unemployment benefits, explaining to the state folks as you do so that you were "laid off". Use all the real dates and events. You don't need to mention this possible maybe potential contract work until it's real: until you actually have an offer to consider.

And then IF you gain contract employment weeks or months from now, fine: that will impact (reduce or suspend) your unemployment benefits, and the state folks will tell you what to do.

But these are two unrelated things, and you can't assume the second step.
posted by rokusan at 11:05 PM on August 27 [7 favorites]

You just got the corporate equivalent of "let's be friends."
posted by Pollomacho at 4:27 AM on August 28 [4 favorites]

COBRA is frequently a lot more expensive than plans you can buy on your own. When I left my last job, the COBRA payment was $450/month, but I could buy a reasonable individual plan from BCBS for about $150/month. So, if that's a concern, might want to check into that. ehealthinsurance.com is a pretty good resource for this.
posted by electroboy at 6:29 AM on August 28

electroboy: "COBRA is frequently a lot more expensive than plans you can buy on your own. When I left my last job, the COBRA payment was $450/month, but I could buy a reasonable individual plan from BCBS for about $150/month. So, if that's a concern, might want to check into that. ehealthinsurance.com is a pretty good resource for this."

Right. But if the OP is eligible for the COBRA subsidy, then, in your example, the COBRA payment would cost her $157 (since the government pays 65% of the cost) and, as many group plans do, might offer her better coverage than an individual plan would.
posted by WCityMike at 8:28 AM on August 28

Nice, WCityMike. Here's a link to the eligibility requirements.
posted by electroboy at 9:39 AM on August 28

If you take the COBRA subsidy, you can't do contract work for the company. Continuing to be on your former employer's payroll makes you ineligible for the subsidy. I had to compare what I might make as a contractor for my former employer against the amount I was guaranteed to save per month on COBRA for six months under the subsidy; given that I was laid off due to lack of work, I was happy to say goodbye and be able to afford insurance.
posted by catlet at 10:00 AM on August 28

Again, the fact that someone is fired for cause or for performance or whatever does not mean you can't get UI. It has to be an unjustified quit by the employee or intentional misconduct or similar factors to bar UI. From the Oregon UI website:

Some reasons for disqualification, denial or reduction of benefits are:

Voluntarily leaving work without good cause, discharge or suspension for misconduct connected with work, or failing to accept a job offer or referral to a job without good cause. If disqualified, claimants must work and earn at least four times their weekly benefit amount. In addition, the total benefits a person can receive are reduced. As a general rule, the total reduction is eight times the person’s weekly benefit amount for each disqualification.

Discharge because of a felony or theft connected with work. If disqualified, all benefit rights based on the wages earned before the date of discharge are canceled.

Being involved in a labor dispute. The claimant may be disqualified as long as the labor dispute continues.

Not being able to work, not being available for work, and/or not actively seeking work. This is a week-to-week denial. The disqualification ends when the claimant is able, available and actively seeking work.

Receipt of retirement pay from a base year employer. Retirement is deducted dollar for dollar from the weekly benefit payment.

School employees between terms and school years. Generally, school employees do not receive benefits based on school wages if they have reasonable assurance of returning to work when school re-opens.

United States. Benefits will not be paid unless a person has authorization to work in this country.

Fraudulently receiving benefits. Misrepresentation in order to receive benefits may result in a disqualification of up to 26 weeks and criminal prosecution.
posted by ClaudiaCenter at 10:00 AM on August 28

did they mean switching you to contract status immediately, with your contract ending in a few weeks? or terminating your regular employment in a couple of weeks and then shifting to contract?

IANA HR person, but my understanding is:

if you have agreed to become a contract worker immediately, with your current ontract ending in a couple of weeks, then you probably wouldn't be eligible for unemployment benefits, although you would be eligible for cobra.

if your regular employment is what's coming to an end in a couple of weeks, then you would be. you only get unemployment if you are fired or laid off, not if you voluntarily separate from the company. if you are on a contract with a specified end date, that is a voluntary separation, not an involuntary one.
posted by thinkingwoman at 4:01 PM on August 28