Discharge vs Resignation

Puna · September 2002

A 10+ yr employee with a clean record was discharged for forging a signature. The employee would like to be able to resign their position. If we let the employee resign and the employee then files suit against the company can the decision to let the employee resign be used against the company? Your input on the pros and cons of discharge versus letting the employee resign is welcome.

Gillian · September 2002

When it is this clearcut most of the pro's of changing are on the side of the employee. There has to be a basis for a lawsuit, discrimination for example. There could be some sort of wrongful termination case if you made a mistake, your decision was a pretext, others have forged signatures without getting fired etc. I think that I would only change it if there were some sort of worry about the legal side of things and only if I checked with a labor attorney. Maybe the attorney could guide you through a settlement agreement.

Paul in Cannon Beach · September 2002

What was forged? If the forgery was not serious, and yet you must terminate the employee because that is your policy, I would let the employee resign given his ten years of service.

If the forgery was of an extremely serious nature and reprehensible, stick to your guns and terminate the employee.

I have let employees resign when there didn't seem to be any compelling reason to not let them have that option.

On the other hand, I would be curious to hear what others think.

[email]paulknoch@hotmail.com[/email]

Rockie · September 2002

I guess I am a little confused here, Paul. When is a forgery not serious?

Also, in South Carolina, a resignation in lieu of discharge means the same as discharge in the eyes of the EI. An employee really has to do something reprehensible in this state to get denied unemployment. Even if it is theft, and the employee denies that this happened, EI Commission will ask for witnesses, etc. and most people feel all this is more trouble than it's worth to try to defend and attend a hearing, etc. unless you are doing it purely on principle.

Hatchetman · September 2002

[font size="1" color="#FF0000"]LAST EDITED ON 09-20-02 AT 05:57PM (CST)[/font][p]Take the resignation...make it "resigned in lieu of discharge."
and make sure that the ex-employee understands that any future inquiries from potential employers (and possibly others) will be responded to as a "resignation of lieu of discarhge" and if the inquiry asks for the circumstances for the resignation, then the grounds of the "discharge" will be idnetified.

I would write up an agreement..what do you get in exchange for letting the employee "resign" at this point? Maybe include for letting her resign that she not seek re-emplyemnt with the company or any subsidiary, etc.; or that she will not file any claim or lawsuit related to her employment termination with EEOC or state agency, DOL or state agency, or any court, etc. Let her know how your internal records will reflect the ending of her employment -- reisgnation in lieu of discharge.

Ditto for how you'll respond to UI benefit claims.

Don D · September 2002

Whether or not you decide to let the person resign in lieu of discharge, I think, will not have any effect regarding a potential suit. As long as your records properly reflect what occured and your records state the facts surrounding the agreement to let him/her resign, I don't see any reason to feel antsy about a lawsuit, if that's all your fear is based on. The facts can easily be laid out in any forum where they are raised as an issue. As Gillian said, whether or not you botched the signature thing or didn't follow policy consistently, could easily ratchet up your discomfort level in court though. Both Paul and Hatchet make great points for opposing sides. Regarding 'other people' I've always felt uncomfortable with allowing resigned in lieu of. However, selfishly, if it were ME, that's what I'd hope for. I would not, however, tell the inquiring minds that it was a resignation in lieu of. That is intended to be a quid pro quo in termination discussions..."If you'll just go, we'll let you resign." Otherwise, there's no value in doing it for either party. Revealing the facts behind the resignation/discharge will only heat up the hotplate when he hears about it.

Rexxies · September 2002

There's some good points here. My opinion is that an employee forged a signature--doesn't matter why, it seems a pretty deliberate act...different from something unwitting or expedient. So unless the employee had permission from the person he/she forged (and I assume not since you are terminating) this should stand as an involuntary termination. By allowing them to resign in lieu of discharge, you're setting a precedent for the next time, you're allowing them to collect unemployment, and you're potentially setting your company up for wrongful discharge suit or other claims.

If your superiors want to change it to a resignation, however, make sure you have the person sign a document stating that they are doing so willingly and are ineligible to make claims under EEO, FMLA, ADA, ADEA, etc.

Good luck!

Don D · September 2002

>make sure you have the person sign a document stating that they are doing
>so willingly and are ineligible to make claims under EEO, FMLA, ADA,
>ADEA, etc.
>
Are you suggesting that in the State of MA, an employer can coerce, convince or ask an employee to sign away their legal rights to recourse under such statutes as ADA, EEO, ADEA? I would want an attorney to tell me why it's worth the paper it's written on.

Rexxies · September 2002

Don--seriously, go ask your attorney. In my last company, our corporate attorney (MI) crafted the document and it's used in all the states we had plants (which is 22 in the U.S.) Document states you are separating from the company, receiving severance pay, that you are signing the document willingly and that you are waiving your rights to claim. And we encourage employees to have their attorney read this before they sign (and it's written in the document). Now does it mean that an former employee can't try--sure they can try, but basically they're going to spin their wheels & pay attorney's fees.... And, having left that company, I've now had my corporate attorney here craft the same docoment wording to protect us. She assures me it's good protection....again, it doesn't mean someone can't try but our process is if they do, they'll have to refund the severance! And we wrote that in there as well.

>
>>make sure you have the person sign a document stating that they are doing
>>so willingly and are ineligible to make claims under EEO, FMLA, ADA,
>>ADEA, etc.
>>
>Are you suggesting that in the State of MA, an employer can coerce,
>convince or ask an employee to sign away their legal rights to
>recourse under such statutes as ADA, EEO, ADEA? I would want an
>attorney to tell me why it's worth the paper it's written on.

Don D · September 2002

Well, Rexxies, I did just that. The attorney said that he has never seen a release agreement (contract) covering simply resignation in lieu of discharge. He said that typically, the release would give the employer certain assurances in exchange for some consideration (generally money) to the employee, such as severence or other monetary consideration. He questioned the wisdom of giving anything at all to an employee who could be terminated for forging a signature on a company document. He commented that some ex-employees have prevailed in their claims that they were coerced/strongarmed into signing the document and offered some proof of that. The attorney also said that your inclusion of ADEA in such a release is not advisable, that there are indeed separate 'rules' for age; that to get such a release from potential age discrimination claims, requires typically extra compensation, a set period of time for the employee to consider the release and then a time period to consider revocation of signature and why would one go this route with this blatant violation. So, it's not quite as cut and dried as you imply and certainly requires the guidance of a competent labor attorney. I think we got a bit away from the original question of the wisdom of allowing resignation in lieu of termination. x:-)

Discharge vs Resignation

Comments