Did That Employee Quit, or Did You Fire Her?

The question of whether an employee quit or was fired is very important if the ex-employee files for unemployment benefits. It determines who in the case has the burden of proof, which falls on the party who initiated the work separation, according to the Texas Workforce Commission (TWC).

An employee who quits has the burden of proving he or she had good cause connected with the work to resign at that time. If you fired the employee, you have the burden of proving that (1) it resulted from a specific act of misconduct connected with the work that happened close in time to the discharge, and (2) the employee either knew or should have known he or she could be fired for such a reason.

Sometimes the circumstances are murky, and it is unclear exactly what happened. TWC provides these hints as to how it might rule in an employment claim: 

• Whoever first brought up the subject of a work separation might be held to be the one who initiated the separation.
• “Mutual agreement” work separations are usually held to be discharge, not resignations. 
• A resignation under pressure is a form of firing. If the employee had no effective choice but to leave when he did, it was an involuntary work separation, and your chances in the case will depend on your ability to prove misconduct.
• If an employee expresses a vague desire to look for other work, and you tell her to go ahead and consider that day to be her final workday, TWC usually will not consider that to be a resignation, since no definite date has been given for the final day of work.
• If the encounter with your employee starts out as a counseling session or a reprimand, and the he gets discouraged and offers to quit, watch out. If you immediately “accept the resignation,” it might be considered a discharge.
  
  It would be better, says TWC, to remind the employee all you wanted to do was talk about a problem, not to let him go, and ask him whether resignation is really what he wants. If the employee confirms he wants to resign, ask him how much notice he is giving. If he gives two weeks’ notice or less, and you accept the notice early within the two weeks, it still will be a “quit,” not a discharge. (Also, you don’t have to pay the employee for the portion of the notice period not worked, unless your company policy promises such a payment.)
• If you have an employee sign a prepared, fill-in-the-blank resignation form, that will look suspicious. The employee might claim she was forced or tricked into signing it, which will only hurt your case. Have the employee fill out a resignation letter in her own words, preferably in her own handwriting, if you can so persuade her.
• If an employee offers to resign, but you instead persuade the employee to stay, and later change your mind and “accept the resignation” — you’ve just fired the employee. Persuading an employee to stay after he’s tendered his resignation amounts to a rejection of the resignation, which means the offer to resign expires, and the employee’s acceptance of your pleas to stay amounts to a rescission of the resignation.
• If an employee asks to be laid off, be careful — that can be a trap. Don’t react reflexively and fire the employee. Remember, if the employee resigns, she has the burden of proving good work-related cause to quit.
  
  TWC recommends you answer a layoff request by denying the request and reminding the employee she is still needed, “thus placing the ball back in the employee’s court.” If the employee persists, follow up by stating, in effect, if the employee no longer wishes to work in your practice, she needs to submit a resignation request in writing, and remind her that in the meantime, she still has a job to do. Don’t prepare a resignation letter for the employee to sign — have her prepare her own statement of resignation, and then respond to that statement in writing, attaching a copy of the her resignation notice to the response. Be sure any exit paperwork reflects that the employee resigned.
• If you are merely counseling an employee about a matter of concern, and the employee starts badgering you with questions and comments like “Are you telling me I’m fired?” or “So you’re firing me for this?” or “I can’t believe you’re firing me for this!” — watch out. The employee might be trying to maneuver you into a premature discharge in the hopes an unemployment claim might turn out favorably for him.
  
  The best response, TWC says, is something like this: “No, I am telling you that you need to start paying attention to instructions and following the rules.” Make it clear to the employee you are focused on improving his performance or having him comply with policies. “Once again,” says TWC of a situation like this, “place the ball back in their court, effectively letting them know, without saying it out loud, that if they want out of the company, they will have to take the initiative themselves.”

For more information related to this topic, see the Types of Work Separations section of TWC’s Especially for Texas Employers handbook.

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