You’ve agonized over firing an employee. You hired her over a year ago and it just isn’t working out. The employee is kind, conscientious and punctual, but just doesn’t have the skills needed for the particular position.
But you’ve made up your mind. You’re firing her at a meeting this afternoon.
In that meeting, the employee stops you part way to say that she too has been thinking the job hasn’t been a good fit and asks if she can resign instead.
Can you still accept the employee’s resignation?
It may seem obvious, but I’ve had more than a few discussions with employers who are caught offguard with such a request. (In some other circumstances, the employer may ask if they can allow the employee to resign in lieu of termination. Gets to the same point.)
The answer is yes, you can allow the employee to resign. Even if you originally were firing them.
There’s no law that requires employers to stick with a decision that they are having second thoughts. You can withdraw a termination, you can change the termination to a resignation. It’s really up to you and the employee.
But here’s a related question. Can the employee still collect unemployment benefits if they “resign”?
Again, the answer is yes. Mostly.
As the Department of Labor notes, the “general rule is that a person who voluntarily leaves suitable work without good cause attributable to the employer is not eligible for benefits.”
But an employer who indicates that it is going to fire an employee and “allows” the employee to resign, is probably establishing the “good cause to be attributable to the employer” because it relates to the wages, hours or working conditions of the job.
There are exceptions, of course, but employers who contest unemployment of an employee that they “allowed” to resign in lieu of termination, should really be thinking long and hard about such a decision.
And, as another blog post reminds, “forcing” an employee to resign isn’t going to fly in many instances either.
Firing an employee isn’t easy. It shouldn’t be. But doing it the right way isn’t that hard either.