Employment Lawyer

I Am Being Asked To Resign - What Should I Do?

It happens from time to time: an employer offers an employee an opportunity to resign instead of being laid off.  Seems like the employer is doing a nice thing – allowing the employee to “save face” by resigning rather than going through the indignity of being let go.  But appearances can be deceiving.  All else being equal, when presented with this option, you should not resign.  Rather, it is time to negotiate.

Just because your employer asks you to resign, that does not mean that you have to.  Assuming you are an employee at will, quitting is entirely up to you.  You can (but don’t have to) quit at any time for any reason.  Similarly, an employer can terminate you at any time for any reason.  Think about that for a moment – your employer has the power to fire you at any time for any reason, yet they are asking you to quit.  Seems weird, right?  That’s because it is.

Before you accept your employer’s offer to resign, consider asking these questions first:

1.      Why do you want me to resign?

2.      Will the company oppose my application for employment?

3.      How will reference requests be handled?

4.      Am I getting severance?

5.      Is there an agreement for my attorney and me to review?

Reasons not to quit:

1.      You might have valid discrimination claims against the company.  Most employment discrimination lawsuits require that you suffer an “adverse employment action” in order to sue.  An adverse employment action is something that the employer does to make your employment worse (i.e. fire, suspend, demote, etc.).  If you quit, though, the adverse employment action was committed by YOU, not the company.  It is pretty hard to argue that you were fired because of your race, age, gender, etc. if you voluntarily resigned.

2.      You might be denied unemployment.  Generally, employees who quit of their own accord do not get unemployment.  Money matters; if nothing else, by resigning, you may be giving up your right to collect unemployment, whereas if you are laid off, you likely will get unemployment benefits.

3.      You are not getting anything.  There is an inherent quid pro quo to the employer- employee relationship.  Why are you going to give the company something (by quitting), for nothing?  You do what the employer asks you to do for pay.  Quitting is no different.

What an employment lawyer can do for you:

Disclaimer – I’m biased.  I help employees end their employment relationships (good and bad) all the time.  Employment lawyers can help you in several ways.  Below are just a few:

1.      Negotiate Severance.  This firm specializes in severance.  Why not get some money on the way out in exchange for the promises that go along with your agreement to resign?

2.      Negotiate References.  Whether you resign or your employment is terminated, it is critical to have some control over how the end of your employment is communicated to potential employers.  We can help you with this and get agreed-upon terms for how your employment is described to others.

3.      Negotiate other Benefits.  Leaving employment has many factors other than just severance pay and references.  We can help negotiate your insurance coverage, stock options, end date, transition assistance, and application for unemployment.  Our goal as employment lawyers is to assist you in a seamless transition from your old job to your future.  If you are being asked to resign, contact us today to schedule a consultation. 

EEOC Releases Workplace Discrimination Charge Statistics

The Equal Employment Opportunity Commission (“EEOC”) has made released its workplace discrimination litigation statistics for 2012.  In total, the EEOC received 99,412 charges of employment discrimination and unlawful termination from October 1, 2011 and September 30, 2012 (versus 99,947 charges in 2011).  The EEOC filed 122 in 2012 (as compared to 261 in 2011).  The 2012 lawsuits resulted in a total monetary recovery of $44.2 million. The EEOC enforces many federal unlawful discrimination statutes, prohibiting workplace discrimination, including Title VII (which covers race, gender, national origin, and sexual orientation, among other protected classes); the Age Discrimination in Employment Act (age discrimination); the Americans with Disabilities Act (disability discrimination); the Equal Pay Act (pay discrimination); and the Genetic Information Nondiscrimination Act (genetic information discrimination).

The most prevalent charges filed with the EEOC in 2012 were for retaliation (38.1%); race discrimination (33.7%) and sex discrimination (30.5%).

If you feel that you have suffered any workplace discrimination, harassment or have been unlawfully terminated, please contact us.

NY Employment Law -- What is the Duty to Mitigate?

If your employment has been unlawfully terminated, you may be entitled to recover damages in a variety of forms, including front pay.  Front pay is pay to a former employee for monies that he/she would have earned, but for the unlawful termination of employment. However, an employee who was unlawfully terminated cannot just sit at home and wait idly to collect front pay.  The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate his or her losses. If an employee fails to look for work, he/she will not be eligible for an award of front pay during any period in which he/she is not actively seeking work.  The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment.  If, instead, the employee elects to stay home, he/she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.  However, if the employee makes constant and good-faith efforts to seek similar employment, he/she is eligible to receive front pay if victorious at trial.

The cases are very fact specific and difficult to predict.  However, at least one thing is settled -- an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.  If you have any questions about your NY unlawful termination or the duty to mitigate, please contact us.

What is Wrongful Termination in New York?

NY Employment Lawyer
NY Employment Lawyer

Our NY employment attorneys often receive calls from potential clients who believe they suffered Wrongful Termination.  However, the term Wrongful Termination is misleading because in New York (and most other states), employment is “at will.” unless there a written agreement.  This generally means that employers can fire or terminate an employee for any reason, or for no reason at all.There are some exceptions to this rule.  For example,

  • Employers cannot discriminate against you on the basis of age, sex or gender, race, national origin, disability or perceived disability, pregnancy status, marital status, or sexual orientation and terminate you because you fall into one of these categories.
  • If you have an employment contract with your employer, which states that you cannot be fired without just cause for a specific period of time.

Otherwise, employers may terminate employees for any reason or for no reason at all.  You may find this surprising, but employers may fire you if they don’t like you, or even if they just don’t like the clothes you’re wearing.  It is perfectly legal for employers to be mean when they fire you or to have totally arbitrary reasons for firing you.

However, it is illegal for your employer to terminate you for a discriminatory reason.  if you believe you have been fired forreasons that may constitute employment discrimination or a breach of contract , then you should consider consulting with an attorney.  Our NY employment attorneys are here to help -- please contact us for a consultation if you feel that you have been a victim of wrongful termination or discrimination of any kind.

What is Constructive Discharge?

What is Constructive Discharge? Constructive discharge is where an employee quits work for good cause.  However, most courts are reluctant to find that an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment.  A humiliating demotion, punitive transfer or hostility toward you are among the types of changes that might entitle you to claim constructive discharge after you resign. For example, if you resign because of intolerable discrimination or sexual harassment, or because your employer transferred or demoted you to an undesirable position in retaliation for reporting a wrongdoing, your immediate, resulting resignation might constitute constructive discharge. Our experienced New York Employment Attorneys have seen many cases of extreme harassment that did not constitute constructive discharge by the employer.

We advise that you don’t quit.

Instead you should

  1. Look for another job,
  2. Complain to HR – and put it in writing, and
  3. Contact us – our experienced New York Employment Lawyers can help!

Remember, just because your employment situation is bad, it does not mean that you were constructively discharged. If a court determines that you quit - and did not suffer constructive discharge - your employment case may be dead in the water. We strongly advise you to contact an employment lawyer, well versed in constructive discharge and to stick it out at work until we develop a plan for your departure. Your job matters and you deserve to work in a discrimination and intimidation free workplace. Contact our employment lawyers today for help.