Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, October 12, 2018

No, Your Employer Can't Force You To Quit

People come to me and say, “I was forced to quit.” Huh? How did the employer do that? Gun to head? Torture devices? Kidnapped loved one? Because your employer can’t make you quit. Quitting is entirely, 100%, up to you.

Just because your boss or HR comes to you and says you have to resign, doesn’t mean you should. My usual advice is never, ever submit your resignation, no matter how much they demand it, unless you have another job lined up or the company offers you an incentive to resign that makes it worth your while.

You need to weigh your options carefully before agreeing to resign. Now is the time to negotiate. If they want you gone, let them pay you to go away. Otherwise, make them fire you. You need to consider the upsides and downsides to quitting versus being fired. Here are some things to consider.

Why You Shouldn’t Quit
You haven’t complained about illegal harassment or discrimination that occurred: It may be a bit late in the game, but if you didn’t follow the company’s written policy on reporting harassment based on race, age, sex, religion, national origin, disability, etc. then you may lose potential claims against the employer. Now is the time to put together your formal, written complaint of discrimination and harassment. Submit it to HR as soon after the meeting where they asked you to resign as you can. If you think the resignation request is being pushed by your harasser, say so. Tell them how others of a different race, age, sex, religion, or whatever your protected category is were treated differently. Tell them that those others are not being asked to resign. Ask them to do a prompt investigation. Sometimes, they really don’t know about the discrimination and reporting it might stop the termination process in its tracks.

They aren’t offering anything: If they don’t offer severance or some other monetary incentive, why would you quit? Don’t make it easy on them. If they want you out of there, they should offer something, in writing.

You might lose your right to unemployment benefits: Some unscrupulous employers use the resignation as an excuse to claim you aren’t entitled to unemployment. It could be your word against theirs if you don’t properly document that you were forced to resign.

They want you to sign something right away: If the employer is shoving something in front of you and demanding you sign it, consider that a red flag. They’re trying to trick you. Don’t sign anything you don’t understand or are too distraught to think about clearly. Tell them you need time to think about it. Take it to an employee-side employment lawyer if there’s anything in it you don’t fully understand.

You have claims against the company: If you think you have a discrimination, whistleblower, worker’s compensation retaliation, breach of contract or other claim against the employer, you may have leverage to negotiate a better exit package. Don’t sign a release of claims without fully exploring your options.

You aren’t fooling anyone: Some people think a resignation looks better on a resume. Maybe. But if you resign and are then unemployed for months or years, who do you think you’re fooling? HR people aren’t (mostly) dumb, so they will know something happened that prompted your resignation.

Why You Should Quit

Great severance package: If you are offered a severance package that will tide you over sufficiently when you’re looking for another job, then you might want to take the deal. Make sure you aren’t also signing away your right to work for a competitor, your pension, or something else of value. Take it to a lawyer to be sure.

Won’t challenge unemployment: In most states, the mere promise that you’ll get unemployment without a hassle isn’t much incentive. Unemployment is usually a fraction of what you were making. However, if you think they might have a basis to successfully challenge your unemployment, then you might consider the resignation as long as they make the promise about unemployment in writing.

You have an alternative: If you have a job offer you’ve been considering, have a startup company you want to spend more time on, or think it might be time to retire, then a forced resignation might help you make a smooth transition. Make sure they agree they won’t tell potential employers or customers anything other than that you left to pursue other options.

If your employer is asking you to resign, you have some power. Now is the time to explore your options, talk to a lawyer, call your union rep, and read everything carefully. You may have more leverage to negotiate in this situation than you think.

Friday, October 5, 2018

Massachusetts Limits Noncompetes - Are You Listening Florida?

Florida has a real chance to turn the governorship and some legislative seats blue this year. Because Florida is one of the worst states for employees in the nation, a change in leadership means an opportunity to change some of the worst anti-employee laws. And in my opinion the worst of the anti-employee Florida laws is our noncompete law.

Massachusetts, after years of wrangling, finally passed a noncompete law that protects its workers against oppressive agreements amounting to virtual indentured servitude. The law went into effect October 1.

Here are some of the provisions of the Massachusetts law that could and should be adopted in Florida:

  • No noncompetes for hourly employees
  • No noncompetes for interns
  • No enforcement of noncompetes for employees fired without cause or laid off
  • No noncompetes for minors
  • Continued employment alone is not consideration for a noncompete
  • Noncompetes can't last more than a year, with the exception of an instance where an employee takes trade secrets
  • Employers have to pay at least 50% of wages for the length of the noncompete period

These are very reasonable restrictions on noncompetes that simply don't exist under the anti-employee Florida law. What are some other restrictions that might be reasonable for noncompetes in Florida that don't exist now?


Noncompetes are bad for economic development, bad for wages, and bad for employees. If you think Florida should follow Massachusetts and other states in limiting abusive noncompete agreements, tell your candidates and vote wisely.