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Is it better to Resign or be Fired?


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Aug 21, 2012, 10:36pm   #1
francot1's Avatar
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My sister is going through a tough time at work and asked my opinion on whether she should resign or stay and probably get fired.

She is a physical therapist and has been at her job almost 10 years. She was always an exemplary employee and in the past had great performance reviews. Last year she got a new supervisor who does not like my sister. She always arrives at work at least 10 minutes early which was fine for the past supervisors. The new supervisor however, has written her up for not being there 20 minutes early even though she does not get paid for this. My sister said that her supervisor told her that she cannot be ready to help patients on time when she only arrives 10 minutes early, even though my sister has proven that she can be ready for them. This supervisor also does not write up the other therapists even though some of them have arrived 5 minutes early or on time.
I do not know exactly how many times that she has been written up but I know that she said she was also written up for other petty things. Several weeks ago she said that her supervisor came at her with a performance plan for improvement, which my sister had to sign and she knows that her days are numbered.
For the past several months she has been looking for a job, but has not found anything.

She asked me if I thought she should resign, or stick it out and get fired. Both her and I have never been fired and she said that she is worried what the other therapists and patients would think. She also wonders if this would affect her ability to get another position. By resigning she may "save face" but most everyone there knows she has been written up, so they may say she resigned to avoid being fired, which still seems bad. She would not be able to collect unemployment either, which in this economy she may need.

On the other hand if she does not resign, this gives her a little longer to look for a job while employed, and if she does get fired, she might be able to collect unemployment. Someone also told her that if she were to apply for another job and they called her previous employer, they cannot say she was fired, just that she worked form this date to that date. Is this true?

In looking at both circumstances, I did not really know what to say, or what I would do in her situation. I am curious what other people think or would do.

From an HR standpoint how does firing or resigning look when asked about it in an interview? What is the best way to present this to the interviewer? Do you have to admit it when you are terminated?
Aug 22, 2012, 2:36am   #2
marina230's Avatar
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After 10 years to be fired? I would wait to be fired at least it will give me a chance to collect unemployment. As for HR department if I see someone was working at the same place for 10 years, I would hire them.
Also, your sister should check her policy and procedure manual as well as job descriptions. Does it says in any place she has to be at work 20 min before? If not, I would fight back.
Tell your sister not to be afraid and may be complain first to HR department in writing.
Document, document, document! Let her surperior start be to concern.
Aug 22, 2012, 8:22am   #3
V
Traveler
Agree with the 10 years & hiring. When hiring, I look beyond what HR people do (screen out) & focus on the positives. (I've yet to find an employee that offers 100%.) Small business, we have the flexiblity to think outside the box.
Not everyone likes everybody else. Don't think bosses are immuned to making mistakes or acting human.

How do they get by demanding one comes in early & yet not pay them? Didn't Wal Mart get sued for this & lose the case?
Aug 22, 2012, 11:34am   #4
lorihmatthews's Avatar
Doberhuahua!
Originally Posted by marina230
After 10 years to be fired? I would wait to be fired at least it will give me a chance to collect unemployment.
OP, what state is she in?

I am not completely sure about this, in CA I don't think you're eligible for unemployment if you get fired. If you get laid off, you are. Different circumstances.
Aug 22, 2012, 11:52am   #5
redney's Avatar
Lovin' Life!
Originally Posted by lorihmatthews
OP, what state is she in?

I am not completely sure about this, in CA I don't think you're eligible for unemployment if you get fired. If you get laid off, you are. Different circumstances.
Lori's right for CA. If you are terminated for cause (fired) vs. laid off (job elimination, company closing, etc), you are ineligible to file for unemployment in CA. It may be the same in other states, too, so check on this.

If I was unhappy with my job, I would search and secure another job first before resigning. Remember, the next potential employer will want to conduct reference checks and will require a supervisor as a reference. It's a huge red flag if the candidate does not provide a supervisor as a reference, so be aware about burning bridges.

As for the reference check, it is legal for a previous employer to state whether or not the person's separation from the previous employer was voluntary or involuntary. Typically previous employers do not give specific details of the circumstances surrounding the separation though.

I agree with the poster who recommended your sister consult the employee handbook and obtain clarification of the required time of arrival to work from HR if necessary.

Best wishes to her!
Aug 22, 2012, 3:45pm   #6
MickMick's Avatar
Member
I would not leave my job until I had something else. Your sister should start looking for other opportunities - NOW.

In my state, you can collect unemployment if fired. She needs to research that.
Aug 22, 2012, 6:18pm   #7
apey_grapey's Avatar
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your sister's supervisor is clearly starting a paper trail to push your sister out, so it's best to start looking for a new job now. or if the supervisor's demands are unreasonable, your sis can fight it. she can request hr to be present in meetings with supervisor - but keep in mind that hr is usually on management's side so she must always be professional.

since your sis has been an (excellent) employee for 10 years, she must have some people on her side. i'd solidify their support (again, make sure she stays professional and no trashing the supervisor).

as for the job search, your sister can use her previous supervisor as a reference and if she's still employed, can ask job prospects not to contact the current supervisor (there's usually a box that asks if it's okay to contact the current supervisor).
Aug 22, 2012, 8:18pm   #8
restricter's Avatar
Beware the BIN Paw
Your sister should call the state department of labor. Generally, hourly employees cannot be required to be in earlier and not be paid. What the supervisor is doing may be illegal. Your sister may have a case for wrongful termination. Come to think of it, consulting a labor lawyer might not be a bad idea either.
Aug 22, 2012, 8:41pm   #9
ms-whitney's Avatar
shopaholic
^this,

I'm sorry your sister is going through this and finding a hard time getting another job

I wish she hadnt sign the written up, and fight it since she isnt obligated to go any earlier then her time, otherwise she should be paid for it

I have nothing more valuable to offer other then to look at what restricter has stated in terms of wrongful termination (if she plays it out) or potentially looking into removing those marks

May she be transferred under another supervisor?
Aug 22, 2012, 10:51pm   #10
francot1's Avatar
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Originally Posted by lorihmatthews
OP, what state is she in?

I am not completely sure about this, in CA I don't think you're eligible for unemployment if you get fired. If you get laid off, you are. Different circumstances.
She lives in NJ. Did not realize that every state can be different regarding unemployment.

NJ must be an easy state to get unemployment, because my neighbor who was fired for falling asleep on the job(complete moron) is currently collecting. When he said he was fired, and receiving benefits, I asked how, and he said that he applied and was denied, but then he appealed it. He said that both he and his employer had to present their case before an arbitrator and after hearing both sides, this person makes a decision . According to him they usually side with the employee.

I have never collected unemployment and just assumed that this was the process for everyone.
Aug 22, 2012, 11:28pm   #11
francot1's Avatar
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Originally Posted by restricter
Your sister should call the state department of labor. Generally, hourly employees cannot be required to be in earlier and not be paid. What the supervisor is doing may be illegal. Your sister may have a case for wrongful termination. Come to think of it, consulting a labor lawyer might not be a bad idea either.
I asked her and she is a salaried employee, but does work scheduled shifts. She told me that she does not punch in or out, but when she opens, has to deactivate an alarm, and the supervisor is using the alarm times for when she comes in. There is no time on the alarm and she is told a week or month after the fact that she came in at this time. She has started writing down the time she comes in, according to her watch. She said that there are several clocks throughout the facility, all with different times. She asked the supervisor to get a time for the alarm so she could synchronize her watch, and was told that they could not do this, and if my sister would arrive 20-30 minute ahead of time would not have to worry about the alarm.
She is also made to come in and work different events on her days off, without extra pay. I guess because she is salary this is probably all legal and allowed.
Aug 23, 2012, 4:46am   #12
Longchamp's Avatar
Member
It sounds like your sister works for a private PT firm and not a public institution.

I think they have an easier time making their own rules.

Water under the bridge, but she shouldn't have signed the performance plan.

Is there an HR department where she works? I would talk to them, if only to have my complaint of harrassement on record.

Who wants to work for a boss that is a PIA? I think she should look for a new job. Sorry she is going through this.
Aug 23, 2012, 7:56am   #13
absolutpink's Avatar
Member
Originally Posted by Vegas Long Legs
How do they get by demanding one comes in early & yet not pay them? Didn't Wal Mart get sued for this & lose the case?
Sears in Canada got sued for this too, and they also lost.
Aug 23, 2012, 7:35pm   #14
Lindsay2367's Avatar
Member
I don't practice in New Jersey, so I don't know all of the applicable laws and regulations, but here are a few suggestions.

First, your sister should check to see what the laws are regarding unemployment. Where I live, if you are terminated for cause, you are not eligible to collect unemployment. And although your neighbor was fired for cause and is collecting unemployment, this does not necessarily means that that is what the law is. Some employers simply choose not to continue fighting after they lose an appeal, for whatever their reason may be.

Second, your sister certainly should request that an HR rep be present at any meetings with the supervisor when your sister's progress on the PiP is discussed. (And just FYI, had she not signed the PIP, she likely would have been terminated for that alone.). At any meeting, your sister should document what is discussed, and ask for specific examples about how she is or is not meeting the goals. If possible, she could try emailing her write up of the meeting to her supervisor and HR, because this gives her documentation should she need it later.

Additionally, if she feels that she is being unfairly targeted, she should discuss the issue with HR. Just out of curiosity, is she a member or a protected class other than being female? Does she have and specific instances of other employees not in that protected group that are being treated more favorably in the same or similar circumstances? If so, she should document these as well.

Overall, if she thinks (either with the aid of HR or not), that she can meet the expectations of the PIP, then she should certainly stick it out (although I would most certainly continue searching for jobs elsewhere). However, if she does get fired, many future employment applications may ask whether she has ever been terminated, in which case she would have to answer yes. But obviously, as others have stated, that is not a complete deterrent to getting a job.

But definitely tell your sister to document what is going on (preferably by email or some such method where it is possible to ascertain when the document was created, so it doesn't look like it was created after the fact). I don't know if New Jersey has a wrongful termination claim or the only wrongful termination claims stem from discriminatory terminations (which is how it is where I live), but if she thinks that she was wrongfully terminated, she should speak with an employment discrimination lawyer.

Oh, and again, I don't know how it works in New Jersey, but in some states, it is difficult, if not impossible, to bring a claim for a discriminatory termination if you quit your job. She would then likely have to make a constructive discharge argument, which is very difficult to win. She would need to check on that (or speak with an employment attorney) to find that out as well before she makes any decision.

And again, I'm not licensed in New Jersey so don't take everything I say as gold. :)
Aug 23, 2012, 9:36pm   #15
pr1nc355's Avatar
Orange Pyramid
Wow...I'm sorry to hear your sister's going thru this. I'm not an HR specialist nor do I practice in NJ, but I work in the same field as your sister and can offer her support (via you or directly). Unfortunately, I'm more familiar with her situation than I'd like to be.

If she works for a small company with no HR personnel or union, she may be able to seek help from a national or state PT organization (but I believe membership involves dues and might be voluntary, and the organizations may not be able to help her if she's not a dues-paying member).

The upside? I'm not sure where your sister has been looking, but the rehab field is pretty recession-proof, and finding another PT job shouldn't be too hard. However, she's been at this job for 10 years, built a career there, so I understand if she doesn't want to leave. Also, if she wants to work in a very specific area of practice, particular geographic area, or in a very specific kind of setting, it may take longer to find a job she would like.

I'm going to PM you now.
Last edited Aug 23, 2012 at 9:41pm.
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