Home » Commentary » If I Have to Resign or Be Terminated from My Job, What Should I Do?

Josh Goodbaum: Hey, Amanda.

Amanda DeMatteis: Hi, Josh. What are we gonna talk about today?

Goodbaum: I want to talk about an employee who faces a very difficult decision, which is whether to resign or potentially be fired. So, imagine an employer goes to an employee and says, “You’ve done something wrong. We think we’re going to terminate your employment, or if you want, you can quit.” Should that employee resign? Should they be fired? What do they need to think about?

DeMatteis: Josh, it depends.

If you think that your employer has arrived at this decision based on something illegal — they’re discriminating against you, they’re retaliating against you — well, then you want to be able to recover damages on account of their illegal employment activity. You can only do that if they end the employment relationship. In other words, if you quit your job, if you voluntarily leave because “I can’t deal with this anymore; I’ve got to go,” then you may be precluding yourself from collecting damages on account of their illegal employment activity.

However, if your employer terminates you, they end the employment relationship, and you are successful in proving that they ended that employment relationship because of discrimination, because of retaliation, because of something unlawful, then you are entitled to damages on account of their illegal employment activity and their adverse employment action that they took against you.

Now, if your employer comes to you and says, “Amanda, you need to resign or else we’re going to terminate you,” that’s just as good as a termination from a legal perspective. It has the exact same legal significance. It’s called a “resignation in lieu of termination.”

The decision to end the employment relationship needs to be your employer’s in order for you to recover for wrongful termination. And if you think your employer is treating you unlawfully, the decision of whether or not to quit or be terminated can be a significant one.

The same is true for unemployment benefits. Here in the state of Connecticut, if you voluntarily resign from your employment, you’re not eligible to receive unemployment benefits, unless a narrow exception applies. However, if your employer terminates you or you’re laid off — they make that decision to end your employment — then you are typically eligible for unemployment benefits. So, again, this is another example of where this decision – “Do I allow myself to be terminated, or do I quit?” – really makes a difference.

Another thing that potential clients come to us about quite a bit is, “Is my employment file from one job going to follow me to the next?” And the answer, at least in the state of Connecticut, is no, unless you expressly consent to it doing so. We are protected by the Connecticut Personnel Files Act, which says that information contained in your personnel file can’t go anywhere unless you say it’s okay, and that includes to a subsequent employer. So, don’t be concerned about, “Well, if I get terminated, that’s gonna follow me to another job,” because it won’t unless you expressly consent to that happening.

That’s the same if you’re looking for a reference from a previous job. If you don’t want that previous job to give a reference, you don’t need to consent to it. Now, we’d want to think about how that works in practice because some jobs would like a reference from a previous employer. But again, that’s fact-specific and is going to matter once we know the facts of your individual situation.

The important thing for anyone to know, and it doesn’t matter what state you’re in, is that you have some level of control here. The best thing to do is talk to an employment lawyer before you make this decision whether to resign or be termination, so you can utilize that control in a way that is most suitable for you. It’s really hard when folks come to me or Josh or any one of our partners and say, “Hey, I was in this really bad employment situation, so I quit!” Sometimes, it’s difficult for us to pick up the pieces after that is done, and it’s much easier to talk through these potential options before you make this decision to get terminated or resign.

Another important thing to remember is this may vary industry to industry. And if where you work is regulated by the state in which you live, you may have some different considerations that you should think about before you make this decision. Josh, can you speak to us about some of those?

Goodbaum: Amanda, there are some industries where whether you resign or are terminated might not make any difference at all. So, if you are a physician, for example, or you work in healthcare, your ability to work is regulated by the state. You need a medical license in order to practice. You might think that the best way to protect that license is to resign from your job, but that’s probably not true.

There is no way for you to prevent your healthcare employer from reporting concerns about your clinical ability to a state licensing board, regardless of whether you resign or are terminated. Likewise, if you are applying for a new job at a new hospital, the hospital’s gonna ask you about your past employment history. They’re not just gonna say, “Did you resign or were you terminated?” They might say, “Did you resign while you were under investigation? Did you resign under threat of termination?” And That new prospective employer, that new hospital, is going to want to talk to the previous hospitals where you practiced. If you don’t allow your prospective-employer hospital to speak to the previous hospitals where you practiced, they’re not gonna give you credentials.

So, if you are a physician facing this decision about whether to be terminated or to resign, I think it’s actually a pretty straightforward decision in the sense that it may not make any difference at all. That doesn’t mean, though, that you shouldn’t be talking with an employment lawyer. You almost certainly should be talking with an employment lawyer because there can be negotiations around the circumstances of your separation. And it’s particularly important if the separation is connected with alleged medical negligence – that is, medical malpractice – where you might want to make sure that your employer is going to be responsible for any claims against you. It’s particularly important if the reason that you are being threatened with termination has anything to do with your alleged intentional bad acts. Imagine, for example, that you’re accused of assaulting a patient. Those are things you really want to talk with an employment lawyer about and potentially also with a criminal defense lawyer about.

DeMatteis: Thank you so much, Josh. It’s really helpful information. We appreciate you watching and we’ll see you next time.

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