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svchivago

Junior Member
What is the name of your state (only U.S. law)? California
My current employer is going through layoff because of lack of business and also because of offshore the manufacture. So almost all of us are expecting notice sooner of later. (It has been 6 round of last year already).

To my surprise, my manager gave me a very bad review just two days ago, and all the reasons given are not true and all are subjective. (There is no violation of company policy here). And I had a meeting with HR to express my disagreement. But HR director told me that I have every right to disagree but I have choice to either comply with my manager or not comply (and she hinted for me to quit). I had good intention to comply before I talk to HR and now I just feel they are trying to conner me so that they can fire me. (I really did not know anything I did wrong and my manager was not willing to give me any example).

By reading the posts here, I understand that they have every right to fire me if they want. However, can they do this in purpose of saving severance package?

BTW, I am exempt salary employee.
 


swalsh411

Senior Member
Since no law requires severance, yes they can try to avoid paying it. They may also be trying to get you to quit so they can avoid paying for your unemployment benefits. This is also legal.
 

svchivago

Junior Member
If all these are so legal, why the company asks everyone, who is laid off, to sign a release agreement (not suing in future) with company?
 

cyjeff

Senior Member
If all these are so legal, why the company asks everyone, who is laid off, to sign a release agreement (not suing in future) with company?
That is standard severance "boilerplate" wording.

I have seen something like that on every severance package I have ever seen.
 

eerelations

Senior Member
Agree, this is standard wording and has absolutely nothing to do with whether the company thinks you may have a valid lawsuit against it or not.
 

Beth3

Senior Member
Ditto. If an employer decides to offer severance pay, it's only smart business to make it conditional on the employee to sign a waiver in return. This is SOP and not any indication the employer has acted wrongly.
 

commentator

Senior Member
The key thing to do in this situation is to quietly do your work to the best of your ability. If you get a write up, ask exactly what you will need to change in order to improve your performance, ask for more specific information if they hit you with a lot of generalities such as "improve your attitude," or "keep supervisor informed"

Keep asking for feedback about your performance each week or so that passes since your write up. Make sure they tell you how you are doing on these performance issues they have addressed. Be sincere, emphasize that you wish to keep your job.

Do not, repeat DO NOT quit or resign, even if they threaten to terminate you and offer you the opportunity to resign to "save your reference." The only way I'd agree to resign is with the understanding (set up hard and fast) that I would be given the severance package.

This, of course, would negate your receiving unemployment benefits. If you are terminated without a good misconduct reason you would probably qualify for unemployment insurance, or if you are laid off due to lack of work, you will definitely qualify.

However, if it comes down to either getting your unemployment or negotiating a resignation with a severance package, the severance package will probably be your better bet financially. Unless they change the law again, unemployment extensions are coming to an end soon.
 

svchivago

Junior Member
Thank you commentator.

Your advice is valuable to me.

The HR is now offering me that if I resign, they will not consent my UI application.
 

cbg

I'm a Northern Girl
Just so that you know, the company does not have to contest for benefits to be declined. I have had employees turned down for unemployment when I did not contest, simply because the reason their unemployment ended was a disqualifying reason.

I am not saying you WILL be disqualified. I think it is unlikely that you will. But a lot of people think that as long as the employer does not contest, they are guaranteed benefits, and that is not true.
 

commentator

Senior Member
Read my lips. DO NOT RESIGN!!!! If they don't want to contest your unemployment, or fire you for some made up reason that will not keep you from receiving benefits, they can give you severance and a separation notice showing you were let go through NO FAULT OF YOUR OWN, not that you resigned!

Tell them this. You have absolutely nothing to lose. They may threaten to fire you, but if they had had a good reason to do this, they would've done it before. All they are doing, from the sound of this, is trying to get rid of you cheaply. Cbg's right, what they're offering won't guarantee you'd be approved for unemployment. If you resign....you very likely won't get it, whether they "contest it" or not!
 

svchivago

Junior Member
Thank you for all your response. It becomes clear to me now that what I should do.

Just one thing want to confirm, if I am terminated with NO-FAULT, how much of chance I could get grant of UI claim? If the reason they give will be performance related (makeup reason), that means NO-FAULT?
 

commentator

Senior Member
If you are terminated, in other words, go out unwillingly (not stating you choose to resign) and the only statement from the company is "at no fault" it would be likely an uncontested, immediately approvable unemployment claim. But "terminated for performance issues" is not no fault, no matter what they put on the paperwork. If they say you were terminated for performance issues, it will be an appealable claim, you will have a good chance to win it, but it is NOT an automatic ticket to unemployment benefits.

Let that term "resign" get anywhere on the paperwork or in your verbiage, and you very likely don't get to draw anyway, regardless of why you resigned or whether it was a no fault/fault resignation. They know that very well, don't doubt it.

Whether the company chooses to say "terminated/ no fault" or "laid off due to lack of work" or "let go without cause" it does not matter, this is an approvable unemployment claim. But if you resign, or are terminated for cause, (any cause, even performance) it's a different issue.


But if they want to introduce performance issues, as I have said, it is an attempt to get rid of you without severance, to scare you into quitting, because had you had any prior warnings about performance before the company begun its downturn?

As you said, you feel it is an effort to scare you into quitting. Though you disagree with your performance review and were given the option to quit, you should continue to work there until let go for performance issues. Do your best. Make it clear to them you want to keep your job. Do not let the ego issue of not being commended or told you are doing well or given good reviews push you into doing the dumb thing, which would be to resign proudly if they don't like my work! Companies choose to give approval subjectively. Pay is what you want from them, not warm fuzzies.

If you can't, while trying your reasonable best, comply with what they are asking, you'll then be able to walk away clean, not run scared. They can try to "corner" you, but if you show up and try your best, they can't ask for more than that. Well, yes, they can, but it's not reasonable. Then they'd have to fire without good cause. Performance firings are notoriously hard to defend to unemployment.

What they would ask you at unemployment claims taking time would be "Did you do your best on the job?" "Had you had any indication that your work was not up to standard?" and "What standard for performance was applied?" and "Were you given an opportunity to improve your performance?"
 

svchivago

Junior Member
Thanks commentator.

Just let you know, that I consider myself a good performer. I have done 20 projects last year with all successful and on schedule. The performance issue comes in that my boss blame me for when he asked me something, I gave back my answer, but the answer I gave did not CMA. So he thought I wasn't follow up (for example), but in reality I did. But he wrote me up for that and he is not willing to hear my side of story, neither do the higher management or HR.

As I mentioned, I am willing to comply but I really don't know where I did wrong. So as you said, I am just doing my job to my best and wait for whatever they decide to do.

I do have prior write up two years back, and I have corrected it. And my boss also have paper work to state that I have corrected it.
 

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