Know Your Rights: Involuntary Resignations

Know Your Rights

Involuntary Resignations

By JAMES A. BROWN

Most civil servants move through their careers with pay increases and promotions and without ever being the subject of disciplinary proceedings. Few civil servants are terminated for cause, and thus few ever confront the dilemma of whether to resign when termination seems imminent.

When an employee contemplates resignation in the face of disciplinary charges, serious consideration must be given to this important decision. As today's column highlights, there in fact exist good reasons to tender a resignation when the alternative is near-certain termination of employment.

Advantages to Resigning

At the outset, you should know that an employee may resign at any time during his or her employment. This somewhat obvious proposition is what separates employment from indentured servitude.

One advantage to resigning applies to any subsequent job search you may undertake. Invariably, prospective employers ask: "Why did you leave your last job?" It is far better to report that you resigned for "personal reasons" than to disclose that your employment was terminated for cause. (Be advised that lying on an employment application, or in a job interview, is not an option since it will likely result in loss of employment.)

If you are a manager, tendering a resignation also ensures that you will be able to collect your "terminal leave" pay upon your separation of employment. Terminal leave - which is available to qualifying managers and bargaining unit members alike - is a lump-sum payment of accrued leave balances based on certain formulas. Pursuant to Personnel Order No. 88/5, managers forfeit their terminal leave if they are terminated for misconduct. A similar forfeiture provision is not contained within the leave regulations governing non-managers.

In addition, if you choose to resign (because termination otherwise seems certain), you may still be able to collect unemployment insurance benefits. While a resignation typically disqualifies a person from collecting such benefits, the Unemployment Insurance Board will at least consider you for benefits (by examining your alleged misconduct) if you resign in the face of disciplinary charges. On the other hand, the board will not grant you benefits if you are terminated in connection with a disciplinary proceeding.

Buying Time

The timing of any "involuntary" resignation must also be considered. There are definite advantages to postponing your resignation's effective date. First, additional weeks on payroll will generate more income and extend your medical coverage. Second, it is often said that looking for a job while still employed enhances your prospects for finding new employment.

How then can you postpone your resignation's effective date? First, if you have the right to invoke Civil Service Law Section 75's job protections, or arbitration, you have some leverage in any negotiation with your employer. Commencing a Section 75 disciplinary proceeding is preferable to arbitration if you are contemplating resignation. This is because a Section 75 disciplinary proceeding takes at least two to three months to conclude and you typically remain on payroll during the process. Your employer, to secure your resignation and to avoid a disciplinary hearing, is likely to extend your resignation's effective date by the number of weeks you would, at any rate, remain on payroll pending the outcome of the Section 75 proceeding.

If you and your union invoke arbitration (rather than a Section 75 disciplinary proceeding), it may be harder to extend your resignation date. This is because the arbitration process entitles your employer to quickly terminate your employment - usually within days of when you are first served with disciplinary charges. Early termination deprives you of the argument that your resignation date should be postponed until such time as a lengthy disciplinary proceeding would otherwise conclude.

Irrevocable Decision

Typically, a successfully negotiated resignation will read: "I hereby irrevocably resign on this day effective [some date in the future]." You should also indicate on any resignation form that you are resigning "for personal reasons." Your resignation "for personal reasons" should help insure that your employer will not report to prospective employers that any misconduct contributed to the reason your employment ended.

Finally, you should know that once you tender your written resignation, there is no turning back. Your resignation can only be rescinded with your employer's consent.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.