Can I resign immediately if my employer terminates my employment a month in advance?

[Tecumseh]

I reside and an employed in Massachusetts. My employer wrote me a letter stating they are terminating my employment effective February 11, 2005 (which is the day after my FMLA qualified leave runs out) based on a technicality (what they are stating is a violation of policy, but is actually they're gross interpretation of such). Can I in turn tender my resignation effective immediately and have that take precedence over their termination -- meaning that they would not be permitted to state to future employers that I was terminated, as my resignation came before the effective date of termination?

If anyone knows the legal answer to this, I could use an answer pronto as February is fast approaching. I'm not concerned about giving up my right to pursue them on basis of violating FMLA/MMLA regulations, even though I know they have for other reasons not stated within here -- it's not worth pursuing that end at this time.

Thanks

 

[cbg]

Slavery was outlawed in this country quite some time ago. You can resign whenever you darned well please.

However, you seem to have the idea that if an prospective employer says you were terminated, that's going to be the kiss of death. Not true, particularly since in your case it was due to an extended medical leave. Few if any employers are going to care that you were terminated because you were on medical leave and could not return before the end of FMLA.

Employers don't generally care THAT you were terminated. They care WHY you were terminated. In the current economy, quite a lot of people are terminated for reason that have nothing to do with job performance, and the majority of employers understand that.

 

[Tecumseh]

Let me clarify

I wasn't terminated for being on an extended leave and not returning before my time ran out. They are saying they are terminating me on the last day of my leave (or the day after) for violating a policy unrelated to my FMLA leave or its policy. And my question is, can they tell future employers that I was fired, since it would seem if I resign now that this would take precedence over their termination since it would technically take effect before they're termination. I know they can't state I was terminated if I wasn't, so I'm wondering if the resignation coming beforehand would make it illegal for them to state I was terminated.

I would otherwise intend to be up front and honest with a future employer regarding why I was terminated, but would certainly prefer to be able to say I resigned. Maybe it doesn't matter. I guess maybe it looks better to say they terminated me on a technicality then saying I resigned my position while out on leave -- wouldn't want a prospective employer to believe I'd do the same to them.

 

[Beth3]

Why would you want to resign rather than exhaust the balance of your FMLA leave? Among other things, you'll forfeit another month of your employer providing health insurance benefits for you.

Being terminated because one has exhausted all his or her FMLA leave and is still unable to return to work won't cause you problems when seeking future employment. Sure if you resign (rather than wait for your leave to be used up) that's what your present employer will say when they're contacted for a reference but I don't get it. What are YOU going to say to future employers when asked why you left: "My employer notified me that my FMLA leave would be up Feb. 11th and my employment would be terminated if I was still unable to return to work so I quit." As a hiring executive, my response to that would be "Huh?" There's no valid logic here that I can see.

 

[Beth3]

Tecumseh, we were posting at the same time. Yes, that clarifies things.

Sure you can resign. But that doesn't mean your employer can't or won't inform prospective employers of the rule violation they believe you engaged in and that you quit rather than be involuntarily terminated.

So an appropriate and accurate answer your employer can provide when askaed "Why did Tecumseh leave your employment," is "She resigned after we notified her she would be terminated at the end of her FMLA leave for an unrelated misconduct matter." They're also free to provide all the details of what that misconduct issue is.

 

[pattytx]

Plus, if you resign, it is almost guaranteed that you will not be granted unemployment benefits, once you are medically able to return to work.

 

[Tecumseh]

I wouldn't be eligible for unemployment benefits if I was terminated for policy violation though from what I understand - and I've already exhausted my paid portion of my leave, not to mention that I do not maintain health/dental insurance through my employer. As far as resigning before the end of my leave is concerned, I stand to suffer no loss there.

I'm just trying to figure out if it is in my best interest to resign prior to their termination date. It's their policy not to release anything to people calling for a reference above and beyond the start/end dates and whether they are eligible for rehire -- not sure if they would stick to that policy or not. It's a hairy line on whether to chance they won't disclose their intention to have terminated my employment or whether to chance a prospective employer would be put off by my disclosing it -- I certainly would tell them the specifics which I believe they'd understand that the company was using a gross interpretation of policy as a technicality to term me. I was intending to resign anyhow, as they have been violating the FMLA/MMLA guidelines and treating me like an ex-employee since I took leave anyhow. And they were long since mistreating me prior to my leave because they were upset about having to provide coverage for such leave.

I just don't know..

 

[cbg]

If you resign, you will definitely NOT be eligible for UI. If you wait to be termed, you might or might not; it depends on what the policy violation was, how clearly the policy was communicated to you, whether it was a wilful violation or not, and to a certain extent your state law. It's not as cut and dried as policy violation = no UI.