Many times clients/employers struggle over whether they should graciously offer the option of resigning to an employee whom they actually wish to fire. The client/employer reasons that the fired employee might prefer to tell “the world” that he himself has resigned from his job, rather than admitting that he was fired. But the client/employer sometimes worries that offering this option of resigning may have some adverse legal impact for the employer/company.

NO LEGAL DISADVANTAGE TO PERMITTING A RESIGNATION: There is usually no legal disadvantage (except under unusual circumstances) to permitting an employee to resign. Then he can tell people in his life (and any future employers) that it was his idea to resign–he is simply “looking for other opportunities” and that is why he left his prior job.

DID THE FORMER EMPLOYEE HAVE THE OPTION TO REMAIN IN EMPLOYMENT: When a former employee files for unemployment insurance benefits, the Illinois Department of Employment of Security (IDES) asks: “Were you fired or did you quit?” When the former employee says that he quit, the IDES will often ask if he had the option of remaining in employment.

IF FORMER EMPLOYEE DID NOT HAVE THE OPTION TO REMAIN IN EMPLOYMENT, THEN IDES CONSIDERS IT A DISCHARGE (REGARDLESS OF LABEL USED BY EMPLOYER): If the employee did not have the option of remaining in employment, then the employee is considered by the IDES to have been fired (regardless of the label the employer used when it separated the employee from employment).

In other words, labels really do not matter to the IDES-it is really a question of whether the employee was given the option of remaining in employment.

Even if an employee is willing to sign a statement that he is resigning when he is terminated, the IDES doesn’t care. The IDES looks beyond such a statement and asks if the employee could have remained in employment. So when an employee hands in a “voluntary” letter of resignation, that employee can usually still get unemployment insurance benefits if, in fact, the employee was told by the employer that he could not remain in employment.

Of course, it is the IDES (not the employer) that makes the judgment about who actually gets unemployment insurance benefits. Eligibility for unemployment insurance benefits rests on a wide range of legal issues. The nature of the separation from employment is just one factor to consider.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.