"resignation by mutual consent"

What is the name of your state? Texas

Hi,
My boss (who is also the owner of the company) informed me on Friday that I'd committed a fireable offense - which was technically theft. I was aware that I had done so and admitted it. I had no excuse for my actions. He told me that had it been anyone else, I would have been fired on the spot, but he was torn because I was otherwise doing a fantastic job and he was aware that my intention wasn't to steal. But, unfortunately, other people are aware of the offense and if he doesn't fire me, he may be leaving himself open to accustions of not applying standards fairly. So, he is taking the weekend to think it over.

I spoke to a friend about the situation and she thinks he'll have no choice but to fire me and she suggested that I offer to resign or at least try to get him to agree to something like "resignation by mutual consent". She's not a lawyer but has a lot of varied experience in the workplace. I can't find any information on this term on the web and am wondering if it's a legal term or what. Is anyone familiar with it? What benefits does this status provide? If he agrees, can I say "no" if asked if I've ever been fired? What should I tell a potential employer in an interview when asked why I'm no longer with the company?

No, it is not a legal term. It's something that your friend (or someone in her workplace) made up. Variants of that term come up any time someone is trying to avoid saying that they/their employee were/was fired but they are not legal terms and convey no legal status of any kind.

What it signifies is that you and your boss agreed that you would leave, and it essentially says to a prospective employer, "I was fired but my boss is being nice and not saying so outright". It doesn't fool anyone into thinking that you resigned of your own accord.

Since it's not a legal term and provides no legal status, unless you have ABSOLUTE faith in your boss to back you up on it, you would be at extreme risk by answering, "No," to the question, "Have you ever been fired?". That could easily be considered falsification of your application., which is grounds for termination/disqualification for future employment.

BTW, in my experience, few employers ask that question - at least, in that way. They may ask, and most likely will ask, why you left your previous position, but in these days of poor economy and frequent layoffs, "have you ever been fired" is meaningless.

As to how you should answer that question, the best way is to TELL THE TRUTH. You can tell it in whatever way will put the best spin on it for you; you can admit that you made a mistake and explain how you have learned from it; you can put it any way you want that you think will put you in the best possible light. But any answer but the truth is likely to be found out, and that's going to put you back in that ol' falsification position again - out the door.

Your boss, by the way, is under no legal obligation to keep this episode under wraps when it comes to references. Again, unless you have ABSOLUTE faith in him, you need to act on the assumption that this WILL come out in a reference check. It is FAR better for you to tell a prospective employer what they are going to find in such a check - the worst thing you can do is let them be blindsided. Many employers will give someone a second chance as long as they are honest about what is in their background; few will give a second chance to someone who lies to them.

Best of luck to you.

And yet another question for CBG

cbg said:

Your boss, by the way, is under no legal obligation to keep this episode under wraps when it comes to references. Again, unless you have ABSOLUTE faith in him, you need to act on the assumption that this WILL come out in a reference check. It is FAR better for you to tell a prospective employer what they are going to find in such a check - the worst thing you can do is let them be blindsided. Many employers will give someone a second chance as long as they are honest about what is in their background; few will give a second chance to someone who lies to them.
Best of luck to you.

Click to expand...

CBG, it's me again...sorry, but after reading this I have to ask...

When I was a general manager for the largest restaurant chain in the country I attended a mandatory 3 day "Corporate law" training class held by the attorneys and legal advisors of our company. As a matter of fact I may still have the booklet buried deep within my office here at home. Anyway, we as General managers were told "The only information that is to be given to a person calling for references are; Length of employment, Salary, and yes or no whether we would take that ex-employee back"...This was to be to told that of ex-employees who were terminated for stealing. Reason is: If the employee was terminated for stealing but was not charged and/or convicted in a court of law and we told any person over the phone that, then the company could be held liable for defamation of character or something like that. Can you shed some light on that if you have time?

I do have the booklet, and it says exactly what I wrote. It also says that even if we as managers catch the employee first hand and terminate that employee we cannot dispense that info to anyone unless the employee was convicted in a court of law. I am in know way telling, saying or giving advice, I am merely looking for clarification of the info I have.

Thanks...

Thanks for your reply CBG. That is the straightforward info I needed. In re Dan's question about prosecution, my boss did mention that "if it were anyone else", I'd also be prosecuted. I'm planning to offer restitution along with my resignation in the hopes that he will not prosecute. It would be good to know how, if he agrees not to prosecute, that will affect what he might say.
Thanks.

How much time you got, Dan? This is one of my hot buttons.

I'm not yelling at you; I'm emphasizing. Don't mistake the two.

THERE IS NO LAW IN ANY OF THE FIFTY STATES THAT RESTRICTS WHAT INFORMATION AN EMPLOYER MAY GIVE IN A REFERENCE CHECK. NOTHING WHATSOEVER IN ANY LAW, FEDERAL OR STATE, IN ANY STATE, SAYS THAT EMPLOYERS MAY ONLY GIVE DATES OF EMPLOYMENT, SALARY AND REHIRE STATUS. THE ONLY RESTRICTION IS THAT THE INFORMATION GIVEN OUT MUST EITHER BE TRUE OR WHAT THE EMPLOYER HONESTLY BELIEVES TO BE TRUE.

How's that?

There is an obsession with some employers and with many corporate attorneys to the effect that if they give any information out whatsoever and the applicant doesn't get the job, they will be sued for slander.

Balderdash. First of all, truth is a defense to slander. (I'll address your particular example in a minute.) If the employee was a bad manager, it's not slander to say he was a bad manager. If the employee came in late every third day, it's not slander to say that.

I post on another board where most of the regular responders are, like me, HR managers, directors, associates, and other HR positions. For the last three years I have had, on that board, a standing challenge for anyone to provide ANY case in ANY court where an employer has been *successfully* sued because they provided a truthful, but negative, reference. After three years, no one has been able to provide one. (I'm not talking about cases where the employer clearly lied or at least, was clearly misleading - those employers deserve what they get. I'm also not talking about employers who may have been sued and chose to settle rather than fight, since there's no way to tell what a judge or jury would have said. I'm talking about a case where an employer offered a truthful reference, was sued for it, went to court and lost the case.)

I recently asked that same board whether ANY of them had ever been sued, successfully or unsuccessfully, because of a reference they had given. No one had. NONE OF THEM (and there are dozens of regular responders from all over the US) had ever had such a suit filed against them. In fact, only one of them had even heard of such a suit. In that instance, a friend of mine, "Barbara" from that board had recently attended the national HR conference. In one of the seminars, that question was asked. Barbara said that ONE person raised his hand - and the company had won the suit. The seminar director said that in all the times she'd given that talk and asked that question, this was the FIRST time anyone had ever said yes.

So that's probably three hundred or more HR managers from all over the US, and in the ONLY case that any of them had even HEARD OF, the suing employee lost.

There are even some situations in which NOT giving an honest reference can get the employee in trouble. Only this morning someone reminded me of a case where a school district gave a good or neutral reference to someone who had been molesting the kids. You can only imagine what happened to that employer when the guy was hired, went back to his old tricks, and his new employer found out that the old employer knew about this and had not warned them.

I don't want you to get the impression that I'm advocating that an employer indiscriminately give out whatever information they want. There is some danger if the employer is not careful about what is said. In your example, or any example where criminal activity is involved, you need to be careful what you say if you don't have sufficient proof. If you catch the guy red-handed with his hand in the till, but you decide not to prosecute for whatever reason, he can't sue for slander because you say he was caught stealing - he WAS caught stealing. But if you suspect an employee but have no actual proof, you're better to stay neutral. Anything more than, "We fired him because we had reason to doubt his honesty" could come back and bite you in the butt if it should prove that your belief was mistaken, and even that much had better wait till you are ABSOLUTELY sure.

BUT THERE IS NO LAW THAT REQUIRES YOU TO LIMIT REFERENCES TO DATES OF EMPLOYMENT ETC.

After all, think about it. If there were no circumstances in which you could do anything but verify dates and salary, why even bother checking references at all? You can verify dates of employment and salary with the employee's paystubs. Rehire status is meaningless; I know of employers who will not ever rehire an employee no matter what the circumstances and no matter how good the employee was. (I do not agree with this policy, but one of my former employers used it; they got bitten by the first and last employee they ever rehired and were never willing to take the chance again.) In a company like that, rehire status means nothing since no one would ever be rehired.

I can think of one other situation where I would agree that limiting references would be a good idea, and it's probably what your corporate attorneys had in mind. Knowing how to give an honest reference without crossing the line (and a line does exist) is something of an art. In a large chain with many locations and many managers, not everyone is going to know how to do it. On the other hand, the HR department, which most likely DOES know how to do it, doesn't know the employees. So in that instances, if I were the corporate HR for a chain like that, I'd either make a rule that ALL references had to be done by HR (and then give limited information since I didn't know the employee) or else make a rule that only dates of employment and salary info could be given out so that the managers didn't accidently cross the line.

BUT THAT IS A COMPANY POLICY, NOT A LAW.

Whew. Betcha weren't expecting all that, were you?

Clear as mud?

Edited to include: in the post on this thread, the poster has admitted to what happened. Slander is FALSE statement; she has admitted that it is true. Therefore, any information the employer gives out is not going to be slander.

Makes sense...

Sometimes it's tempting to think that one can "get away" with not mentioning something just because - damn - it's embarrassing to admit. Thanks for the straight talk. I needed to hear it.

That was wonderful and a very tramatic learning experience

Anyway, I knew that there is no law that requires an employer to withold any information that is of truth to a "Reference checker"
I was seeking info on how far a former employee can go with suit if an employer says he was fired for stealing without having the proof of a conviction. To sum the info up in my booklet: Even if I catch them with their "hand in the till" so to speak and doesn't get convicted in a court of law than I have no right to dispense that info...more or less a "Prove it" type situation..and if you can't prove it I am suing you for defemation of character.
I understand now that the Corp lawyers in my case were probably just being proactive to any potential headaches, whether or not an ex-employee has substantial evidence or not...
That's pretty much what it says... and that's why I came to you, to shed some light....
And I know you're not yelling at me

Let me offer a suggestion, kianna.

Answer questions that are put to you truthfully. Do not volunteer what is not asked; at least, at first.

It is unlikely that you will not be asked fairly early on why you left your previous employer. When I am hiring, the first thing I do is review an employee's resume with them, including why they left each position. But if it should happen that you are not asked the question, do not volunteer the answer.

If it then progresses to the point where the prospective employer is making noises about calling references, THEN you say, "BTW,there's something I haven't mentioned about my last position. I didn't say anything before because it's rather embarrassing, but you need to know before you call my last employer. I left my last job because.....

"I've never done such a thing before and I've certainly learned my lesson. You needn't be afraid that I'll ever do such a thing again. But the first step in showing that I've learned my lesson is in admitting what I've done." Or something along those lines. You could even use a variant of that theme in answering the question when it's asked in the interview.

BTW, kianna, I REALLY hate to kick you when you're down, but you might want to discuss with your employer what he plans to tell the unemployment office. If he tells the truth (which he really should) you'll be denied benefits. If he doesn't contest the claim, that's to a certain extent committing fraud (since he's aiding and abetting you in obtaining benefits you're not entitled to). What's more, it works against him because it could cause his rates to rise. You can ALWAYS apply, but you need to be prepared for the fact that you're not likely to qualify unless your employer is willing to cooperate.

Dan, just like in the issue with the employee's access to his/her file, this is the difference between a legal right and an ethical right.

I do not necessarily agree that you have NO ethical right to dispense that information unless the employee has been convicted in a court of law, but if your management thinks otherwise, that's what you have to go by. And I would certainly agree that whether you do or do not have that ethical right is situation specific.

cbg said:

Dan, just like in the issue with the employee's access to his/her file, this is the difference between a legal right and an ethical right.

I do not necessarily agree that you have NO ethical right to dispense that information unless the employee has been convicted in a court of law, but if your management thinks otherwise, that's what you have to go by. And I would certainly agree that whether you do or do not have that ethical right is situation specific.

Click to expand...

CBG, thank you very much for your time in answering all my questions over the weekend. This really has benefited me (educational wise) being in the Management position I am in, and also if in the future I should open another restaurant I will have better insight on these situations...

Thanks

Any time, Dan. If you have any other questions, I'm always here.

Would you rehire?

When a previous employer states he/she would not rehire, is it considered a huge red flag by the person who was/is considering hiring the prospective employee? Also, some applications ask if one has ever been offered "to resign in lieu of termination", if one would answer "yes" would that not immediately put them out of the running as well? I'm just curious as to your opinion as an HR person. Thanks

No, a "would not rehire" is not an automatic red flag that puts someone on the do-not-hire list. I am well aware, having worked for one (who had this policy AGAINST my advice) that some companies do not rehire ANYONE under ANY circumstances, regardless of how good the employee was or the circumstances under which they left. I WOULD ask the employer WHY they would not rehire. If they refused to respond, I would be cautious, but would compare this with the other references. If all the other references were good, and all the other reference companies WOULD rehire, then I'd probably disregard the would-not-rehire to a certain extent. Some people are just not good fits for some companies and it doesn't necessarily say anything bad about the employee. I would NOT automatically assume under ANY circumstances, that a do-not-rehire meant that the applicant was a bad employee.

I have never seen an application form with that question on it and I would not want to work for a company that asked that question, since I consider the answer to be essentially meaningless. However, for the sake of argument, no, that would not automatically put them out of the running either, and for the same reason. Some people are just not a good fit for some positions, and it doesn't mean anything was wrong with the employee.

Too many people assume that HR will believe that being fired ALWAYS means for cause; that a do-not-hire MUST mean that the employee was fired for cause; and that unless they can say that they quit or resigned to EVERY position, that's the kiss of death. Not true. A qualified HR person understands that there are any number of reasons why someone might be asked to leave a job, and that it might be as simple as a personality conflict.

This is one reason, by the way, why I advocate that companies give open and honest references instead of limiting themselves to dates of employment and rehire status. It's tough on employees who WERE fired for cause, but with all due respect to kianna, I think employees earn their references. Open references are MORE fair to good employees, and benefit those employees who lost their job for reasons that have nothing to do with their job performance such as personality conflicts or tight budgets.

Thank you for your opinions, but I think you may be underestimating the scrutiny and standards that teacher's must undergo and pass in order to be hired, or maybe I'm overestimating them.

RE: "Have you ever been dismissed from employment, asked to resign, or resigned in lieu of dismissal?" Check out http://www.teachinflorida.com which is Florida's Official Teacher Recruiting website hosted by the Florida Department of Education. I cut and pasted that question from their online teaching application for you, so you can now say you've seen it.

As far as a "lie"........if I see you pick up a pencil off of someone else's desk, use it, fail to return it and walk away with it.........are you saying it's not a "lie" if I say I saw you steal fellow employees personal property, and I fire you for theft? As I said, I guess it's a matter of semantics. If my opinion is that you are a thief given those circumstances am I entitled to tell everyone else you are a thief? My opinion is that in a case like that, some type of due process should apply........please call in the police and arrest me if you can, and if you can't, keep your insane and dangerous opinions to yourself. The idea that one can be labeled guilty of what an employer "thinks", "perceives", or "believes" even though he/she may be dead wrong really stinks.

You asked my opinion as an HR person and I gave it to you. Without knowing specifically what happened to you and what kind of "outrageous" accusation was made under what circumstances, all I can give you is a general and overall response. I don't work in the education field so I don't know about any industry-specifics requirements they may have. Since you yourself suggest, however, that you may be overestimating the standards, that says to me that you're assuming what is going to happen or assuming the reason it is happening.