I was unfairly (IMO) forced to resign? What protections do I have?
June 27, 2017 1:25 PM   Subscribe

I am a full-time independent contributor at an enterprise company. My new boss (she joined a few months ago) recently pushed me to resign (alternative being put performance plan), because I wasn't "meeting expectations". She never gave me warning or feedback about my performance beforehand, nor truly explained afterwards. I don't think I really deserved it, and I've worked with many many people across the company and have consistently gotten great reviews from my peers, and the few people I shared my situation with were absolutely shocked. I put in my notice because I had no real choice, but before I sign any final documents, I want to make sure I protect my rights (if I have any, that is). I'm mainly looking at the whether I can petition for unemployment (I'm in CA). I do not want to keep this job anymore nor do I want to cause drama. However, if push comes to shove, what should I do? What protections, rights, or power do I have as an employee?

I know I'm hired "at will" and can be fired for any reason. I get it. I also understand I'm not the perfect worker. However, I think I should've been given feedback before being put on a performance plan, which HR admitted was not there to help the employee succeed.

Another thing I'm wondering about is an unrelated HR thing that happened a few years ago, when another boss basically treated me (and his whole team) horribly for a year and actively slandered us in front of other management. He eventually got kicked out of the field because he made too many enemies and the team members were saved. I think the company just wants to brush this incident under the rug, but is there anything there?

Right now, I'm interviewing for other jobs, which looks promising. Obviously, if things turn out well, I'll just move forward from this situation and leave this behind. However, if I do not find another job, I want to know if there's anything about my situation that can help me receive unemployment or some sort of protection. Also, is there anything I should know before I I sign any documents waiving away my rights? Are there emails/artifacts I should save?

Note I do not want to waste my life and money getting locked into a legal battle. Not my intention at all. I'm more asking what power can I use to protect myself from HR and my boss?

Many thanks.
posted by lacedcoffee to Work & Money (13 answers total) 2 users marked this as a favorite
I think if you are an independent contractor, rather than an employee, your company does not pay unemployment benefits (you would have to pay into the unemployment fund yourself while employed to be eligible). I'm not a lawyer, though!
posted by pinochiette at 1:35 PM on June 27, 2017

*individual contributor, not contractor. I am a full-time employee of company.
posted by lacedcoffee at 1:37 PM on June 27, 2017

If your company says that you resigned, you will likely not be able to collect unemployment. That is why they are pushing you to resign in the first place prior to putting you on a performance plan. See subheading C in this california government document - "Quit in Anticipation of Discharge" and compare to subheading D - "Quit in Lieu of Discharge".

You can ask them not to contest your unemployment claim as part of your separation negotiation, but if you've already agreed to resign, I don't know what leverage you have - perhaps "I can resign right now, or I can resign in two weeks after I've put together a comprehensive transition package for the next person to fill my position."
posted by muddgirl at 1:55 PM on June 27, 2017 [2 favorites]

Or rather "I can resign with today as my last day, or I can resign with my last day being in two weeks."
posted by muddgirl at 1:56 PM on June 27, 2017

Sorry that you are dealing with this. I was out of work recently and it is not fun.

California's Employment Development Department has a whole page on when a "voluntary" leave really is voluntary. From that page, it is voluntary if "[t]he employee resigns in anticipation of a discharge or layoff and before the employer takes any action." In other words, if you think they'll fire you, but you quit first, the state holds that you left voluntarily. If it's one step further along, and you are given the choice of "resign or you'll be fired," they treat that as involuntary. Based on your story, where the choice was "resign or performance plan," it looks like an uphill battle.

(But that's not to say that you shouldn't file. Or maybe you could work something out directly with your employer.)

(on preview, muddgirl got there first.)
posted by AgentRocket at 1:59 PM on June 27, 2017 [1 favorite]

In the above link, in regards to "Quit in anticipation of discharge", they gave an example of a case when the discharge was merited. I am wondering what the situation would be if I don't believe it was merited. Even though I quit, would could it be considered a "constructive discharge"?

Also, I already gave my resignation. They agreed to keep me on a few weeks if I resign. When speaking with HR, we essentially looked at a performance plan as a long road to being fired, so I felt like my hands were tied. If I had not resigned, they would have put me on a performance plan in order to fire me.

I just don't understand what rights an employee ever has to protect ourselves in situations we feel are unfair or we just have a bad boss...
posted by lacedcoffee at 2:47 PM on June 27, 2017

Why not go on the performance plan, if only to give yourself time to sort this out?

Yes, it sounds like she'll have you gone, but I have seen cases where the person on the plan got back into good graces with the company, and who knows, maybe she'll be gone before you.
posted by at at 3:43 PM on June 27, 2017 [4 favorites]

Have you considered rescinding your resignation and making them fire you? The law is not "they can fire you for any reason," but "they can't fire you for a prohibited reason." They will need to provide a paper trail to illustrate why everybody else in the company thinking you're great, except her, resulted in your firing, resulted in even a PIP. She should have to make an excellent case why she gets to come in and take your job for some reason. I also don't see a downside in making this a headache for the company, which will be attached to her reputation.

Take with a grain of salt, I have no skin in this game, but I had a similar experience that I did nothing about, so I project my frustrations onto yours! :)

At the very least, save copies of everything, emails or other communications with Boss. Consider taking a 15min consult to an employment lawyer or three before you pull any more triggers. This circumstance should not result in you having to worry about getting unemployment.
posted by rhizome at 4:21 PM on June 27, 2017 [1 favorite]

If they had put you on a performance plan and then fired you, you likely would have qualified for unemployment (that would be separation through no fault of your own). In general you have to be like seriously breaking the rules (stealing, insubordination, malingering), not just failing to perform up to snuff.

You can always try to file and see what happens. The state will gather facts from you and from your employer and then make a determination, which either party can appeal.
posted by muddgirl at 5:12 PM on June 27, 2017 [4 favorites]

The law is not "they can fire you for any reason," but "they can't fire you for a prohibited reason." They will need to provide a paper trail to illustrate why everybody else in the company thinking you're great, except her, resulted in your firing, resulted in even a PIP.

This is inaccurate, at least in CA (and most other states). The list of prohibited reasons is quite short, and covers things like racial/gender discrimination or firing whistleblowers. But as the OP mentioned, it's perfectly legal to fire someone because you don't like them, or without giving any reason at all.

Now, even though the legal system is unlikely to help you keep your job, the company may have its own internal policies regarding PIPs and so forth. If those weren't followed, you can try getting HR involved. But they don't have have any obligation to do what's best for you personally; if they think it's more efficient for the company to get rid of you instead of hearing you out, they'll happily do it.

The good news is, you have nothing to lose by filing for unemployment. Even if your application is initially denied, you can generally contest the denial and get an opportunity to give your side of the story.
posted by teraflop at 1:41 AM on June 28, 2017

If you ask them they will likely agree not to contest your claim. Have you talked with HR? I would much rather have been laid off then go through an employment plan and be fired.
posted by xammerboy at 11:28 AM on June 28, 2017 [1 favorite]

Thank you all; as I think about it more, I think the best I can possibly do is ask them not to contest my unemployment claim. Any advice on the best way to have this conversation?

I have already had initial discussion with HR about whether I qualify, and they made it clear that since I resigned (instead of laid off), I do not qualify for unemployment. They are quite the penny pinchers despite being a large company. However, they have admitted I had a difficult tenure at the company (especially regarding my first boss), which is why they gave were "gracious" enough to give me 60 days instead of 30 days following my resignation (my last day is in 2 weeks and yes, I am thankful they at the very least gave me this extended period).

As I think about more, I realize that this might be to save themselves the trouble of putting together a PIP (which would've been 60 days anyway), and maybe also to placate me regarding the situation with my first boss. Is there any bargaining power in this? Should I even go there or is it a losing battle?

Also, are there preemptive measures I should take? Can I get my HR record (where I had a slew of positive reviews), and might have documentation of my first boss. Should I download emails I think are relevant to my case? What does it mean to "rescind" my resignation, and what negative impacts can it have? My field is quite small, so I don't want to make enemies, but at the same time, this is my potential life and livelihood we are talking about....

I also think my current boss did not go through the proper process of giving me feedback about my performance prior to throwing the PIP wrench. In fact, she seemed to have raving feedback and then something seemed to change. Is this something I should bring up to HR? They seem nice and compassionate as people, but I do not trust HR in general because I know their best interest is for the company. Which is why I bring up whether there's any bargaining power in reminding them of issues that might pose as a legal or image liability.

Many thanks in advance!
posted by lacedcoffee at 11:42 AM on June 28, 2017

If you work for the large multinational I think you might, be aware that if you have zero shame and really want to piss off your boss you can totally just not resign, get fired, appeal your dismissal using the policy in the handbook and get put right back on the team. If there is any friction at all between your immediate boss and their boss, their boss will side with you and you're back in. If you don't actually like the job, take the severance and get another job.

More helpfully, in many states, being "counseled out" or "asked to resign" leaves you eligible for UI benefits. Apply as soon as you're able and they will decide, probably in your favor.
posted by wierdo at 10:36 PM on June 29, 2017

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