If I am being fired but given the choice of staying on until my replacement is found, could this be a scam to cheat me out of unemployment?

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If I am being fired but given the choice of staying on until my replacement is found, could this be a scam to cheat me out of unemployment?

I am on 2 weeks of doctor ordered disability leave. I intend to return next Monday assuming my doctor releases me on Friday. I was told today by a co-worker that I am going to be fired on Monday but will be given the “choice” of staying on until my replacement is found. My co-worker said that the employer has done this before so the employee can be said to have quit and so not get unemployment.

Asked on August 3, 2011 California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

As a general rule, if an employee leaves voluntarily, he or she cannot collect unemployment. However, if an employee is effectively or constructively fired, notwithstanding that he or she allegedly resigned or quit, they may be able to still receive unemployment. The exact facts of the situation, and the degree to which, in reality, the employee was effectively fired, will determine this.

Moreoever, if you are told that you will be fired or terminated once a replacement is found, that is still being fired or terminated--i.e. it is still an involuntary separation. The key is not to sign anything which would characterize matters as a voluntary separation--unless the company makes it worth your while to do so. However, assuming you don't, if they fire you now or they fire you in 3 months, that's still firing you. Be prepared to stay on past the replacement, and make them terminate you to get you to leave.


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