Ask Me Help Desk - Should I resign or be terminated?

Should I resign or be terminated?

I have been a county employee for 4+ years. About a year ago I took a promotional position in another agency which has a one year probationary period. I received my nine month evaluation on 4/30/08 and was told that I needed to make improvements by 5/30/08 and if I did not the agency would consider termination. On 5/16/08 I called in sick due to back/neck pain. I saw a Neurosurgeon on 5/19 and he advised surgery. I immediately contacted the agency's personnel contact to make sure he knew what was going on. I did tell him that I received a less than flattering evaluation and still had over two months to serve on my probation. He stated that the probation would cease while I was out and resume upon my return. He mailed me FMLA paperwork on 5/28 which was postmarked 6/3. On 6/11 my supervisor contacted me to tell me that I was being terminated because I failed to make necessary improvements between 5/1 and 5/30 and that even though I have been out sick since 5/16 they are holding me liable. She said I could resign if I agreed to do so quickly. I said I would but then thought about it and I can't help but feel that what they are doing is illegal. I received a phone call from the personnel contact just yesterday and he said that he didn't know about the situation w my evaluation and that they were getting ready to fire me anyway. He said they are within their rights to fire me and strongly advised that I resign immediately. I can't believe what they are doing to me. I also filed a rebuttal to the poor evaluation because my supervisor had been harassing me which the agency has failed to address. I can't help but feel that they are just trying to push me out. I don't know if there is anything I can do legally? Everything just seems so wrong to me. Any advice? I am in New York State.

If you were told that you need to make improvements by a certain date and haven't made them, they can fire you. And really, they could fire you even if you made the improvements. The only difference is that right now you are probably not going to be eligible for unemployment benefits, and if they fired you without cause you would be.

What really gets me is that I am looking to transfer back to where I came from. They know this too. SO I can't understand why they won't just handle this as a transfer. It really makes me sick.

As a employee on probation they can just fire you. I will assume you are not part of the state employees union and/or not under the state merit system. ** both of which gives you more appeal and barganing rights.

And to be honest the reference would most likely be the same, and if you quit you will not get unemployment.

I work for the county system - it is a lot like the State except when it comes to things like this.

Quote:

Originally Posted by froggy7

...they could fire you even if you made the improvements. The only difference is that right now you are probably not going to be eligible for unemployment benefits, and if they fired you without cause you would be.

froggy7 is making a valid point, as I understand this: if you resign, you may be ineligible for unemployment benefits, but I seem to recall that some states do not penalize an employee where the choice is 'resign or be fired', because you really don't have a choice. I have seen situations where an employee is ineligible for benefits where reasonable rules and regulations of the employer have been broken, which caused the dismissal.

Here in New York you have to be terminated to receive Unemployment benefits. I don't want the Unemployment - I just want to transfer to my old agency and go back to my previous position which has all been worked out. I just don't feel that I should have to resign but the more I think about it the more that seems to be the way to go. This situation really stinks.

Well, we hope things work out for you!

I did find out that they cannot do this to me because of the FMLA. So what happens now is they will hold the position and more than likely fire me the day I return. So it looks like I will be resigning to avoid all of those unpleasantries.
Thank You all for your advice and support.

Whoa.

Before you resign, you need to worry more about your health insurance then your unemployment. You need to make sure your surgery and recovery are covered. If you resign, it may not be.

Quote:

Originally Posted by BethiPoo

Here in New York you have to be terminated to receive Unemployment benefits. I don't want the Unemployment - I just want to transfer to my old agency and go back to my previous position which has all been worked out. I just dont feel that I should have to resign but the more I think about it the more that seems to be the way to go. This situation really stinks.

That is not 100% correct in NYS - if you believe you are FORCED to resign due to working conditions and are able to work, you can apply for benefits and, if denied, you can request a hearing and, if you can make a case, receive benefits.

Sounds like Beth needs a third person in the room when talking personnel issues?

Quote:

Originally Posted by JudyKayTee

That is not 100% correct in NYS - if you believe you are FORCED to resign due to working conditions and are able to work, you can apply for benefits and, if denied, you can request a hearing and, if you can make a case, receive benefits.

I am glad you replied because I was under the impression you could only collect if you were terminated. I learned something new - thanks!

Quote:

Originally Posted by George_1950

Sounds like Beth needs a third person in the room when talking personnel issues?

Sounds about right to me these days! :D

Quote:

Originally Posted by ScottGem

Whoa.

Before you resign, you need to worry more about your health insurance then your unemployment. You need to make sure your surgery and recovery are covered. If you resign, it may not be.

Wow, I really feel like you are looking out for my best interest. I do have my insurance through my husband - THANK GOD! You're not kidding about recovering - I have been so stressed out since I received that first phone call. I just can't believe the way an employer can treat you.

Just why are they pushing you to resign ? If they terminate you during the probationary period, don't you have that year to return to your old job in the system ? The termination would not be for cause, it would have to be failed probationary period, which should be considered the same as a lay off. You would be eligible for benefits. Hey they want to get rid of you , fine. You want to quit, fine. But they want you to quit. Sorry, it don't work like that. Make them show the cause.

Quote:

Originally Posted by westnlas

Just why are they pushing you to resign ? If they terminate you during the probationary period, don't you have that year to return to your old job in the system ? The termination would not be for cause, it would have to be failed probationary period, which should be considered the same as a lay off. You would be eligible for benefits. Hey they want to get rid of you , fine. You want to quit, fine. But they want you to quit. Sorry, it don't work like that. Make them show the cause.

I think someone goofed to tell you the truth. I was out on Family Medical Leave Act (FMLA) and then they called me to tell me about the probationary thing. A friend of mine who has worked for NYS about twenty years and is VERY familiar w FMLA told me that they cannot fire me if they have allowed me to go out on FMLA. I think once they realized their mistake they had someone else call me and entertain the thought of transferring to the other department. What really bothers me the most is that I had MAJOR surgery and I am recovering - I didn't need this added stress. They could have fired me upon my return from FMLA or if I exceeded 12 weeks of FMLA. I think what they did to me was absolutely despicable (not sure if I spelled that right).

Plenty of times people with less than full knowledge act precipitously and then try to cover up their mistakes. The people who interviewed you and accepted you for the promotion decided they misjudged so want to get rid if their mistake. In doing so, they compounded their error by violating the rules.

Quote:

Originally Posted by BethiPoo

I am glad you replied because I was under the impression you could only collect if you were terminated. I learned something new - thanks!

No. I've done some background work on unemployment in NYS - which is where I am, in fact - and I've found the Hearing Officers to be remarkably pro-employee.

Don't know, of course, if that's true all over the State.

Quote:

Originally Posted by BethiPoo

I think someone goofed to tell you the truth. I was out on Family Medical Leave Act (FMLA) and then they called me to tell me about the probationary thing. A friend of mine who has worked for NYS about twenty years and is VERY familiar w FMLA told me that they cannot fire me if they have allowed me to go out on FMLA. I think once they realized their mistake they had someone else call me and entertain the thought of transferring to the other department. What really bothers me the most is that i had MAJOR surgery and I am recovering - I didn't need this added stress. They could have fired me upon my return from FMLA or if I exceeded 12 weeks of FMLA. I think what they did to me was absolutely despicable (not sure if I spelled that right).

You are aware that you cannot collect Unemployment when you are unable to work - I'm sure you do but thought I'd just throw that in.