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For several months I had a feeling my company wanted to get rid of me because of office politics, and for a while it has been a hostile work environment. My suspicion was confirmed when they put me on a PIP during my February review. Even though I hit all items on my PIP they made the decision to terminate me this Friday. On the call with HR and my manager they offered the option to submit a resignation letter or if I remained in terminated status they would tell any future job verification calls that I was terminated for poor performance from a PIP. My first question is, is that legal for them to say anything more than I was terminated with cause (can they give the cause in this case)? My second question is, do you recommend I just submit a resignation letter and they will change my status to resigned, or allow the termination to proceed and have that as my status. Thank you very much.

I would like to add that I am in late stages with two interviews, one will have a decision late this week/early next week (I am one of a couple final candidates), and I have a final interview at another company early next week. The company is located in Virginia and I'm employed at-will.

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  • 4
    Similar query: workplace.stackexchange.com/questions/166016/…
    – PagMax
    Mar 10 at 13:00
  • 2
    Legal or not, HR usually get around it with two questions: 1) is X have been terminated or he give his notice? 2) Would you hire X again if there was an opportunity? Those two questions often give a clearly picture of the ex-employer perspective. Mar 10 at 15:59
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This depends heavily on your location (country, state, etc). Besides finding a new job, this may have impact on severance, unemployment and other contractual obligations. I recommend talking to a local labor lawyer. If you nailed the PIP and still got fired you may have a case of constructive dismissal here, which could give a strong negotiation basis. It's possible that the company is offering resignation since the dismissal is legally questionable.

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  • If they were at-will, does the PIP actually have any weight? (I note they are from the US, which is largely at-will employment). Mar 10 at 14:33
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    A question you have to ask yourself is "why are they offering you this?" Companies rarely do this unless they have a reason, and frequently the reason is that they can't actually make the legal case to fire you without severance. A question you should ask is "Am i being fired with cause or without cause?" Mar 10 at 15:05
  • @DJClayworth Agreed, this smells more than three day old fish left out in the sun Mar 10 at 15:24
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    Yeah, ask for one hour of an experienced labor attorney's time. This just smells rotten. Mar 10 at 18:11
  • 1
    OP said they work in Virginia, which is an At-Will Employment state. OP will have zero legal grounds to challenge termination, even if nailing a PIP (which is just some internal documentation thing and is irrelevant for actually terminating employees). OP simply needs to weigh what termination vs. resignation means for their unemployment benefits (if needed), severance (if offered by the company), etc. That is all. All other things do not matter.
    – SnakeDoc
    Mar 10 at 21:57
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You have to ask yourself why you are being offered this?

Companies rarely do things without a reason that provides themselves with a benefit. Sometimes they are just nice, but if they just wanted to be nice they would say "we will not tell future employers that you were fired for poor performance". The offer they have made means that they want you to resign rather than be fired, and are prepared to offer you something you want in order to get it.

The usual reason companies offer like this is that they will owe you severance or other money if they fire you, and don't want to pay. That in turn means they can't prove to the satisfaction of their own lawyers that you really did perform poorly enough to deserve termination. (Your completing the PIP successfully would back up that idea.) Their lawyers are probably concerned that if they terminated you for performance you might make a successful legal claim.

An important question you should ask is

Will my termination be "for cause" or "not for cause"?

If you are terminated for cause then they do not have to pay you severance. But they do have to prove, if you dispute the termination in court, that they were justified in terminating you. If they terminate you without cause there is usually severance to pay. Also if they terminate you without cause then you can say that to a future employer, and they would understand that it means your previous employer couldn't find any legal reason to fire you.

Proving cause is hard, and many companies would rather pay the severance than try to prove it. Alternatively they want to persuade you to resign with inducements like this. If you resign then they don't have to pay you severance or prove your incompetence.

I hope it is obvious that if you resign you will not be entitled to unemployment benefits, which may be a big problem if you do not get a job for a long time. You also have no legal redress against the company.

Visiting a lawyer is probably a good idea, if only to get an idea of what you are actually entitled to if you are terminated or if you resign. Depending on how long you have been at the company tens of thousands of dollars may be at stake. If you have a contract read it carefully to find out what the company owes you for termination without cause. Have your lawyer read it too, if you visit one. Note that your contract overrides the "at will" nature of your employment.

As for what you should actually do, I would push back somewhat. Ask the question above. If they say they will fire you "without cause" then I would let them fire you. You will get unemployment benefits if you need them, and you can reasonably tell future employers that you did nothing substantially wrong to deserve being let go. (you won't be using this company as a reference.) You might gently suggest that you would consult a lawyer if you were fired "with cause".

If they threaten to fire you "with cause" then you can also negotiate the terms of your termination. You could agree terms of termination in which they still fire you (meaning you will get unemployment benefits) but you agree to severance that they are happy with, in return for them not saying you were fired for poor performance. The aim of your negotiations should be to be let go without cause (not resigned), with a promise of a reasonable reference, and with them paying you severance you both find acceptable (which may be zero). I went through this with a company (who were blatantly trying to get rid of me without any justification) and we agreed that they would give me one month's notice, without cause, and a month's pay after that. In fairness that was in Canada.

If you are in an "at will" state and you don't have a contract then much of this may not apply, but companies don't usually make offers like this unless they have a contract, explicit or implicit.

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  • Most companies in the US don't pay severance unless it's in the contract. Do you mean Unemployment Insurance? Mar 10 at 15:25
  • 1
    No, I mean severance. I find it very unlikely that a company would make an offer like this unless they had a liability for severance of some kind. I devote two paragraphs to explaining why this is the case. Mar 10 at 15:29
  • You may not be aware of how things go in the US DJ, but if OP is terminated they are eligible for Unemployment benefits generally speaking - if they resign they are not eligible. If OP resigns they may be entitled to a severance from the company (if applicable), and if OP is terminated they may not be entitled to a severance. That's likely the reason the company is offering options to OP while in an At-Will state (Virginia). They are getting rid of OP either way, but being kind about it.
    – SnakeDoc
    Mar 10 at 22:04
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    In addition, the PIP itself may contain binding agreements or obligations that the company wants to get out of (they weren't expecting to have to follow through on them).
    – bta
    Mar 10 at 23:17
  • "Companies rarely do things without a reason that provides themselves with a benefit." Sometimes that benefit might be protecting themselves from a discrimination claim, if @Robert is a member of a legally protected group (racial minority, LGBT, female, elderly, etc).
    – nick012000
    Mar 11 at 1:55
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Edited because some people don't understand the "Illegal" does not necessarily mean criminal.

Go directly to a lawyer. In most states, initial consultation is free. They are almost certainly in violation of laws. California law makes it a misdemeanor when a former employer "by any misrepresentation prevents or attempts to prevent" their former employee from getting a job, for example. Other states may provide relief through defamation, libel, slander or tortious interference. A good lawyer versed in labor law in your state would know. Now, if they take your case, you may need to come up with 5,000 for a retainer, but any unused amount is refunded to you.

This company is trying to play hardball with you, and is threatening you with bad references. Both the bad references and the threat thereof may be actionable if they violate any labor laws on coercion, constructive dismissal, or slander, libel, defamation, or tort laws.

Normally, I wouldn't recommend going right to a lawyer, but this is one of the few instances where going to one may end up saving you money in the long run. If you resign, you will be ineligible for unemployment. If you are terminated for cause, you can at least appeal it with unemployment. Having a "friendly" letter from a lawyer may get them to back off, and let you be "laid off" instead.

This is important, because now one question that may be asked in job applications is "Have you ever left a job during a PIP or in lieu of termination".

So, them "allowing" you to resign is no better than being fired.

GET TO A LAWYER, ASAP

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I'm going to side with the other folks here and suggest that you ought to ask for an hour's time from an attorney who specializes in labor law. This whole thing just "smells very bad." I really don't understand why they are making you this offer, and they just might be calculating that you won't bother to find out. That could turn out to be very costly ...

An attorney ... "knows."

The old-fashioned word for an attorney is counselor, and it's a much better phrase. An attorney is a qualified, credentialed "expert in the Law." (S)He knows what you do not, and "what you don't know can seriously hurt you." Attorneys actually charge reasonable prices, and many of them will give you a free initial consult. You're an expert in whatever-it-is that you do, and these folks are experts in the Law.

I first met my personal attorney – Tom – many years ago now, when we were dealing with a slightly-complicated probate case. Very quickly, I came to trust him implicitly. Now, whenever I encounter anything that might possibly be in his bailiwick, I say, *"Let me Ask Tom™ about that." I call him up. The clock starts running. He finds me my answer, "on the clock." I pay the bill quite willingly, and Tom is always fair. There have been many times when he told me something that never would have occurred to me, and that expertise is precisely what I'm paying for. If he himself does not know the answer, he knows another attorney who does, and I trust him to make the proper selection and "bill it through" to me.

An hour's conversation with a qualified attorney would replace "what you think" with expert knowledge. Just ask the attorney to explain the situation to you from his expert point of view. Whether or not you like what you hear. For a modest price, "now you know."

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  • The best lawyer story I ever read: David Morrell wrote the novel "First Blood", which was the basis for "Rambo". Before selling the film rights, he paid $500 to a lawyer who added to the contract that Morrell would have the exclusive right to write books for any sequels of the movie. Well, Rambo died at the end of the first book. But not at the end of the movie. So Morrell made good money from writing several sequels.
    – gnasher729
    Mar 12 at 15:52
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There isn't really an objectively "right" choice between resigning and getting terminated, if given the option. It depends a lot on your circumstances.

Resigning: (as opposed to termination)

  • could be more beneficial in interviews, if you have a good reason for leaving. Getting fired can be a bit of a black mark when trying to get a new job (and lying about it can be a lot worse).
  • could be more detrimental in interviews, if you don't have a good reason. Also, what might otherwise have been a good reason gets a lot worse when you willingly leave without having another job lined up (that's usually seen as irresponsible and employers might think you'll do it again).
  • could leave you without unemployment benefits and severance pay. This could be a problem if you're unemployed for an extended period of time.
  • could put you in violation of the terms of your contract. Mostly contracts only require serving a notice period, and any terms can be changed if both parties agree, but it's something to be aware of, at least.
  • may not give you the legal recourse you may have had if you were terminated. This may not apply to such a large degree if you were employed "at will".

It's probably easier/cheaper for the company if you resign, which may very well be why they offered it to you. But there are still some cases where resigning is preferred from the employee's perspective.

Ask for more time

If you were going the route of resigning, and you don't already have another job lined up, I would suggest asking for a week or two to think about it and/or agree to it on the condition that your last day is a month or three from today. This would give you some time to find another job.

If terminating you is going to be a hassle for them, or if they're just reasonable, it's very likely they'd happily allow you to stay for a while if you've given them a firm end date in writing.

PIP is bad

For future reference, it's also worth keeping in mind PIP could just be a formality for companies without really giving you any way to "pass" it. Even in the best case, it's still quite an uphill battle. If you get any indication that you might get fired soon (which PIP certainly is), you should assume the worst and spend any moment you can free up trying to find another job.

You did mention interviewing elsewhere, so maybe you were already know this, but I thought I'd just mention it.


I'll leave the legality of your specific question for other answers to deal with (as they already have).

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  • There is no reason not to lie about being fired in an interview. In the US, prospective employers cannot confirm you were fired. HR from your previous company is only legally allowed to confirm the dates you were employed. They cannot give out any other information. Even if you're against lying for moral reasons, you can just say "I left the company to pursue other opportunities", which is true. You did leave the company. You are pursuing other opportunities.
    – user428517
    Mar 11 at 2:16
  • @user428517 I don't know where this myth comes from. HR at the previous company can legally make any statements that are true and not misleading so long as they don't involve information they've agreed to keep private. No law prevents them from candidly discussing your job performance. (I doubt they will. But that's not because some law prevents it.) Mar 11 at 2:29
  • @DavidSchwartz It's not as cut and dry as that, especially in states like California. California law makes it a misdemeanor when a former employer "by any misrepresentation prevents or attempts to prevent" their former employee from getting a job, Most notably or attempts to prevent their former employee from getting a job So the truth is not an absolute defense. That's a misdemeanor, btw, so it goes into criminal law. It largely depends on the state of the employee as well as the state where the company is headquartered Mar 11 at 15:10
  • @Old_Lamplighter That requires a "misrepresentation", which courts have interpreted (because of the First Amendment) to mean an intentionally false or reckless misrepresentation of demonstrable facts. Yes, it is as cut and dry as that because the United States has the First Amendment which absolutely protects the right to exchange truthful information not accepted under any privilege. I've had this conversation with five lawyers so far and they've all told me that it is absolutely lawful for me to say anything true that wasn't provided to me pursuant to any privilege. Mar 11 at 15:52
  • @DavidSchwartz, no, it falls under tortious interference, and as I said, in California, it's actually a crime, and it does not require any misrepresentation, just attempts to prevent the former employee from getting a job. Now, while the lawyers in your state may be absolutely correct FOR YOUR STATE it may be bad advice for another state. This is why a lawyer is needed Mar 11 at 15:59
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You have known for several months that your work environment was hostile (I think we are all sorry to hear that) And now you think that you have multiple other work options. If you get an offer then quit your current job in order to accept a better job. Walk away.

If your current employer keeps bringing the threats then at least do a consult with a lawyer, I think you will be encouraged by that, but do not bring a threat to your employer. They will be willing to waste more money on this than you can probably afford.

If you are close to landing a new job I would suggest that you resign. You can then move to a new job, and if that falls through you can tell a new employer that that caused the quit. There is a lot of advice above about unemployment benefits and severance pay Good advice, but that does not feel like your real problem.

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As I said in other answers, I do not think the lawyer approach is a smart idea. Yes it is the best way to get legal advice, but at the end of the day you can leave the company just as easily as they could fire you. They could say to you don't come in tomorrow just as easily as you can say you don't want to work there anymore.

Unless there is a contractual agreement between you and the workplace, my best advice is to just move on. It's a smarter move to just submit your resignation as it keeps your options open from the standpoint of benefits that you may get outside of the workplace.

As far as calling your workplace, they can say whatever they want to the other employer. It's best to let them call a verification line rather than any manager or person who may speak otherwise. From a company standpoint, they will just say you worked there and you were terminated for performance reasons. They would not elaborate any further than that. If they call a manager or supervisor, they may go into details and from a legal standpoint, you might have options but proving they actually said what they said is going to be tough because you need the potential employer come to court with you and say under oath that they called your employer and they said that. Do you think they'll do that?

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  • You probably need to note that in some jurisdictions there can be entitlement differences between resigning and being fired. Mar 10 at 14:31
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    If the OP resigns, he gets ZERO in unemployment claims. Also, it does not protect him when the next potential employer asks him if he ever left during a PIP or because of one. That is becoming a common interview/application question. Mar 10 at 14:38
  • 2
    An hour's time with a qualified attorney could definitively answer many questions, and possibly not cost the OP a cent. And, even if it did, "one hour wouldn't cost much." Mar 10 at 18:23
  • @Old_Lamplighter Assuming what the OP says is true, which I have no reason not to assume, he can truthfully answer "no" to that question. While his employer may have called it a PIP, it was not a PIP. One piece of evidence that shows that is that despite him accomplishing what the not-a-PIP asked, his employer still claims they arm terminating for cause. That makes it not a PIP but instead just an excuse to claim they had cause to fire the OP. Mar 10 at 22:21
  • @DavidSchwartz PIPs are OFTEN used as excuses to fire an employee. They're usually used for the purpose of gathering evidence under the pretense of giving someone a chance to improve. Mar 10 at 22:23

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