No Fault Definition

[TxCincy]

What is the name of your state (only U.S. law)? Texas

I am working for a company that is taking my termination in a very strange approach. Basically, the organization provided a performance review in February that suggested several areas to be improved upon, with a follow-up in 60 days. After the 60 days, the follow-up meeting concluded that an additional member of management was to be called in to complete the updated review, however that meeting never occurred.
Fast forward to late July and a standing weekly meeting for task updates became a difficult criticism of work and notification that a new position was being created for a superior in my department. One month later, during the same standing meeting via telephone, I was notified that I would be transitioned out of my position. Two weeks later, in the same standing meeting, the conversation immediately became the plan for transitioning and the unknown time needed to fill the open position mentioned a month before. I was offered the time to work in my current role until the superior position was filled or I chose not to continue completing the work needed for my department.
Today I received an email stating that I agreed to my employment ending with company, a description of the reason for my employment ending with the company (initial review in February stated areas for improvement, which were not improved upon sufficiently) and a description of the terms of continuing employment. no date was given for termination and at no point does it specify that I am being terminated, except if the work required of my department is not completed or unsatisfactory.

I was then asked to print and sign that email and turn it in.

I get the feeling this email is intended to keep the company from being liable for unemployment. I'm refusing to sign in its current form.

Please let me know how I can approach this and remain eligible for benefits.

Thank you

 

[Zigner]

What is the name of your state (only U.S. law)? Texas

I am working for a company that is taking my termination in a very strange approach. Basically, the organization provided a performance review in February that suggested several areas to be improved upon, with a follow-up in 60 days. After the 60 days, the follow-up meeting concluded that an additional member of management was to be called in to complete the updated review, however that meeting never occurred.
Fast forward to late July and a standing weekly meeting for task updates became a difficult criticism of work and notification that a new position was being created for a superior in my department. One month later, during the same standing meeting via telephone, I was notified that I would be transitioned out of my position. Two weeks later, in the same standing meeting, the conversation immediately became the plan for transitioning and the unknown time needed to fill the open position mentioned a month before. I was offered the time to work in my current role until the superior position was filled or I chose not to continue completing the work needed for my department.
Today I received an email stating that I agreed to my employment ending with company, a description of the reason for my employment ending with the company (initial review in February stated areas for improvement, which were not improved upon sufficiently) and a description of the terms of continuing employment. no date was given for termination and at no point does it specify that I am being terminated, except if the work required of my department is not completed or unsatisfactory.

I was then asked to print and sign that email and turn it in.

I get the feeling this email is intended to keep the company from being liable for unemployment. I'm refusing to sign in its current form.

Please let me know how I can approach this and remain eligible for benefits.

Thank you

What benefits?

 

[davew128]

What benefits?

Unemployment.

 

[Zigner]

Unemployment.

Yikes - yeah, I guess that was pretty clear.

 

[eerelations]

What benefits?

I think UI benefits.

OP please note that UI benefits are generally granted to employees who are let go due to underperforming. It's only resignations and willful misconduct (such as deliberately damaging employer property and insubordination etc.) that will cause benefits to be denied.

In your case, I think it's advisable to sign the email as not signing it could be construed as insubordination. In addition, you are facing a clear choice right now - either sign the email and keep your job a little while longer, or don't sign it and probably lose the job immediately. The UI people always look askance at people choosing an immediate termination over continued employment.

 

[TxCincy]

I think UI benefits.

OP please note that UI benefits are generally granted to employees who are let go due to underperforming. It's only resignations and willful misconduct (such as deliberately damaging employer property and insubordination etc.) that will cause benefits to be denied.

In your case, I think it's advisable to sign the email as not signing it could be construed as insubordination. In addition, you are facing a clear choice right now - either sign the email and keep your job a little while longer, or don't sign it and probably lose the job immediately. The UI people always look askance at people choosing an immediate termination over continued employment.

Thank you. Yes Unemployment is what I was referring to.

However the underperforming aspect is a piece of this. In the email it is stated I "agree" to the employment ending with the company. I am fearful this can be construed as a mutual decision.

 

[eerelations]

So sign the form and add "This does not mean I am resigning."

 

[Chyvan]

Please let me know how I can approach this and remain eligible for benefits.

Study this: http://www.twc.state.tx.us/ui/appl/unemployment-benefits-appeals-policy-precedent-manual.html Look at section 315 of the "Voluntary Leaving" and then look through the "Misconduct."

The thing is, you may be between a rock and a hard place. TX has a different take on misconduct. They have decisions like "the work was so simple that anyone could have done it, and you not being able to do it is misconduct." Another take is "you used to be able to do the job satisfactorily, and now you're not, so the only logical conclusion is that your failure to meet standards is delibrate and that's misconduct."

You don't have to sign the letter as written. You can rewrite it. They may be mad at you, but "insubordination" is just a word and it's not always synonymous with "misconduct." You can be the accounting supervisor and be told, "starting now, you'll be demoted to the accounts payable clerk." You can tell the employer to pound sand. Is it insubordination, probably. However, after reading section 315, you'll see what really happened to you is that you were "discharged" from the job that you HAD, and you telling them to pound sand is nothing but a refusal of work which will then be adjudicated on whether it was suitable for you or not.

Contrary to what many think not every job is suitable just because you can do it. They look at how long you've been out of work, and the system lets you look for work at your highest skill level. You don't have to sell yourself short when technically this discharge/refusal occurred in the span of minutes. My state gives 8 weeks to a skilled worker to find a job very close to what they had or better before requiring them to start expanding their search and lowering their expectations.

Depending on what you see happening to you, you're not totally powerless if you're content on collecting UI.

 

[commentator]

Okay, you may read all these statutes, but I really don't think it is much necessary that a person familiarize themselves too much with unemployment law before filing a claim. Assume nothing. Jump to no conclusions. Always file a claim, even if you don't think you are going to be approved, or might not be approved. It costs nothing and is your right to do so. Anybody can file. People don't need to know what to say, or how to say certain things. A certain basic understanding of the process is all that is necessary or helpful. And sometimes you don't get that from reading statutes.

I move that you don't sign the email. Keep working. If they say, "Sign or you're fired, say, 'so be it." File for unemployment at that point.

When you file the claim, you will not be given any opportunity to argue about your eligibility, you'll just be asked certain specific questions pertaining to your termination, such as "What happened that causes you to be no longer employed by CCCCC company?" "What was said by your employer when they told you to leave?""Had you had any warnings about this issue?"

Then a decision will be made by an adjudicator who is very familiar with unemployment statutes and has probably heard all this before many times.

In order to qualify for unemployment, you must be out of work through no fault of your own. No fault of your own can be interpreted more or less liberally in the various states, but the concept is still the same. Employers DO NOT want to pay in the higher rates that will ensue when you are qualified for unemployment benefits. They will squirm and wiggle and try diligently to avoid laying you off or telling you they have no more work for you or terminating you without a valid misconduct reason.

They often believe that "poor job performance" is a great way to fire someone. It really isn't, even in Texas. Poor job performance is a very subjective issue.

In order to terminate someone for good misconduct cause, you must show that (1) the job was do-able (2) the person was adequately trained, and able to do the job (3) the job performance was something that the person had been warned about, they had the capability to change the behavior, were very aware of the performance standards that would be used to measure their performance, and CHOSE not to do the job adequately, or as they had been asked to, or were given clear feedback about this job performance issue and had made little or no effort to improve.

That's not easy. In every state I have been familiar with, yes, there are times when the employer demonstrates that the job is so easy that anybody could do it, and it was NOT beyond the capability of a semi-normal person. Thus failure to perform it adequately was definitely slacking. Or they will say that the person used to do this job just fine, had earlier demonstrated their ability to perform satisfactorily in this job, and then decided to slack off, take more breaks, slow down to make it easier, stop trying, etc. Those are claims that probably won't be approved.

Poor performance becomes misconduct when the employee had the ability, means, awareness and choice to change their deficient behavior and keep the job, and they did not chose to do so. If the employer terminated you for poor performance, the unemployment system will ask a lot about warnings, about your awareness, your feedback you had received from them, pretty much, did you do your best? When you became aware of their unhappiness with your performance, did you attempt to improve it? And did you always do the job to the best of your ability?

From the sound of this, it makes very little difference whether or not you sign this silly email. They're about to get rid of you. From the sound of this, you accepted a demotion, and even then were given an ultimatum that you're going to be discharged for performance anyhow, but not until it's convenient for them to lose you.

Quickly, make yourself a copy of it. Then just keep doing your work. If they take the next step and tell you to go, they may do it suddenly. Make sure you've collected copies of everything you need, including previous years performance evaluations, the company handbook, etc. that you might not be able to get hold of in ten minutes without warning.

It's not really going to be seen as insubordination (automatic misconduct) if you refuse to sign this email. If they then tell you to leave, that you're fired for insubordination, so what? You file for unemployment benefits stating that you were given no choice (incidentally save yourself a printed copy of this email, and any communications about your employment that you receive via email ) about signing this form or about being terminated immediately. The unemployment system will sort it all out. They fully understand the games that employers play when trying to get rid of someone without paying them benefits.

But hang on until you are told by the employer to leave the premises. Do not agree to sign any sort of resignation letter unless they offer you a severance package of some kind with your signature. Then sign it, take the package, and then tell the unemployment system exactly what they told you and that you did not have any choice in the matter, but you were ordered to sign this or you wouldn't get the severance. They've heard this one before. They understand that you did not really quit in this situation, the termination was not driven by you.

It will take a while (several weeks) in this situation to get an initial decision, as the employer will probably fight the claim diligently. There's no specific way we can say "Do this and you'll qualify" but I can tell you that if you always maintain that you made every reasonable effort to please your employers and do what they asked of you, and you did the job to the very best of your abilities, that will help you. If you are initially approved, your employer will probably appeal the decision. You'll need to go through the hearing, even if you've found another job, to be paid for all the weeks since you filed the claim.

But even in Texas and many of the southeastern states where they are a bit more employer friendly, they are governed by federal unemployment law, and they have to give as much weight to what the claimant says as what the employer says.