I quit my job 2 months ago, and my employer wants to retroactively make it a firing

by Alison Green on April 16, 2014

A reader writes:

I put in a resignation letter that was accepted in February. I gave a 30-day notice to the company. I received a phone call last week (April), stating that my resignation had been changed to a termination. The company is saying that they found evidence of non-compliance against me at some point. I just want to know if it is legal to change my status of resignation a month and a half after I stopped working for the company.

What? That’s crazy.

They can’t fire you two months after the fact. That would be like telling your boyfriend two months after he broke up with you that you’ve come to realize that he was deeply flawed and so in fact you broke up with him.

It doesn’t matter what they found out after the fact. It doesn’t change the reality, which is that you resigned. It’s preposterous to pretend otherwise.

The only way this makes sense is if you were still working there and they decided to fire you, thus having you end your work now rather than working out your notice period. But it sounds like you’ve already left, so that’s not the case.

Maybe what they intended to communicate to you was simply that you’re ineligible for rehire … although if that were the case, they could just say that. And they certainly wouldn’t need to contact you out the blue to announce it to you. Going back to the boyfriend analogy, it would be like reaching out to your ex to preemptively announce that you don’t want him back.

As for the legal side of things, they can call your departure whatever they like in their internal records, but they can’t lie about you or the situation to others. That means that they can’t tell future reference-checkers or your coworker that you were fired. If they do, you could potentially have a defamation suit, if you could prove damages — but even if you couldn’t prove damages, a sternly worded letter from a lawyer would likely put a stop to it.

However, they could legitimately tell people that you’re ineligible for rehire and they could tell them whatever their reasons are for that, as long as those reasons are truthful.

But they can’t rewrite history and claim they fired you when they didn’t, and they are loons for thinking otherwise.

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{ 166 comments }

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  1. AMG*

    If they did try to do that, I wonder if the OP could go on to collect unemployment. I assume OP has a new job now, but if not…

    Just curious.

    1. Adam*

      That’s a good question. I’m curious now too. But Alison stated they can’t legally lie about why she actually left the organization…so probably not?

    2. Except in California*

      That was my thought, but doesn’t unemployment payout involve a cost to the former employer? If so, why would they want to pay out?

    3. Adiposehysteria*

      Because she voluntarily left and wasn’t laid off, I don’t see how she would be able to collect it regardless of how the company frames the departure.

      My guess is that it may have something to do with other benefits that they don’t want to give her that they would have to if she left with notice like accrued PTO or something.

      Or it could just be an extremely spiteful manager looking to destroy her chances at future employment.

      1. Koko*

        In fact, it’s more likely she could collect for being fired. It’s only if you’re fired for gross misconduct, not simply being a poor performer, that you can’t collect.

      2. Nameless*

        There are plenty of circumstances in which you can leave voluntarily and still potentially collect unemployment. Off the top of my head, I can think of non-payment of wages, not getting enough hours, changes in the scope of your work, family or medical emergencies, and hazardous or hostile work environments. Granted, there’s still wiggle room there for someone to decide your reasons for quitting weren’t good enough.

        1. Saturn9*

          What about changing work hours to hours I can’t work?

          My employer has stated they may be mandating a start time of 7am instead of 10am for some employees and that schedule will not work for those of us with childcare or other early morning commitments/obligations. We’ve been advised that our alternative if we can’t work the 7am start time is that we can quit.

          There are other schedules available in our department and other coworkers would like to trade shifts but we’re not allowed to. (My conspiracy theory is the company is doing this on purpose because they want some of us gone.)

          1. Elikit*

            What if those who can’t handle schedule changes continue coming in at the old start times, forcing the company to either ignore it or fire them properly?

          2. anon-2*

            Saturn9 – there is a term for that.

            It’s called a “constructive discharge”. Look it up!

            1. Kara*

              A lot of people were saying that that was Marissa Mayer’s objective when she got rid of the work from home policy at Yahoo.

              1. Matthew Soffen*

                Sadly, I don’t have a problem with getting rid of “work at home” for people.

                It makes contacting those people awkward (when you need to face to face with them) and when your company “blocks” things like Skype or IM.. Makes it that much harder to interface.

  2. Adam*

    This whole thing waxes of the “You can’t fire me. I quit!” but in reverse. It almost seems like somebody wanted their pound of flesh and was stewing over it for a month until they could figure out a scheme to get it. Really strange.

  3. sometimes annoyed*

    I really like this blog, and I think that Alison does an amazing public service by posting answers to comments and updates and lots and lots of advice.

    But answers like this really bug me.

    I wish that this answer had more thought and more action items for the OP– except outrage. Here are some examples of what would he helpful
    1) what documents does OP have from termination? Letter? Confirmation of receipt?
    2) Telling OP to communicate to company that they need to provide that info in writing, if that is the case/helpful. I think that it is.
    3) Is it worth it for OP to consult with a lawyer before it gets to potential defamation?
    4) How can OP look for a new job or provide this job on his/her resume knowing that the employer will likely lie and create issues when called for reference check, etc.?

    I wish that this answer was more complete in those ways. And maybe something worth discussing in the comments (as to the specific questions/comments above)

      1. Monodon monoceros*

        This was what I came here to ask. In this situation, what can a person do to deal with this if a potential employer is checking references? Since employers can contact former employers that are not on your reference list, is it worth it to say “Oh, by the way, if you call X company, they will talk smack about me” or is that just raising red flags that may not be unearthed anyway?

    2. Katie the Fed*

      But the OP didn’t ask that. She only asked “I just want to know if it is legal to change my status of resignation a month and a half after I stopped working for the company.” She didn’t ask what she should do now.

    3. Ask a Manager* Post author

      That’s fair criticism. The OP just asked if it’s legal and that’s what I answered, but it’s also true I do often add “and here’s what you can do about it” to those answers and maybe should have done that here too.

      (That said I would put “If they do, you could potentially have a defamation suit, if you could prove damages — but even if you couldn’t prove damages, a sternly worded letter from a lawyer would likely put a stop to it” in the category of “here’s what you can do about it” … just not as detailed as you might have wanted!)

      1. Jeff A.*

        Alison, I’m curious if in this case you would recommend the OP trying to contact the former employer to get the official company reference/stance hashed out now, or let it sit and only raise the issue if at some time down the road the OP hears that the former employer is providing the false information.

        1. Ask a Manager* Post author

          Yeah, I would — because it’s going to be easier to nip in the bud than to try to deal with it later on (when decision-makers might have been replaced and the new ones won’t know the relevant context, among other reasons). I’d call and talk with them directly first, and if that doesn’t work, I’d have a lawyer send a stern letter.

      2. sometimes annoyed*

        thanks for being open to this criticism. That’s part of why you are awesome and this blog is awesome.

        I also see a bit more about why you answered the way you did. I appreciate you sharing that.

      3. anon-2*

        AAM

        Defamation of character is NEVER legal. Oh, you can’t be put in jail for it, but you CAN get sued.

        The question for OP is – does she want the company to cease and desist, or is she looking for damages?

        IMHO the “cease and desist” route, is the better way to go, but also require them to undo any damage already done — that is, force them to call or write those they defamed you to, and have them provide a retraction. And promise to “play nice” in the future.

        Or Else.

    4. Joey*

      There are too many what ifs to speculate how it MAY affect op in the future.

      And I’m not sure Id want engage with the company unless I had to (ie moving forward with a lawsuit.)

      Why would you consult with a lawyer? Because the company is doing something that hasn’t YET caused harm.

      It doesn’t sound like the op is looking for a job.

      1. Anon 1*

        I have to disagree. This is the OP’s most recent job and many potential employers call to confirm employment, termination etc. So there is a pretty good likelihood this will be a problem. Also, going to a lawyer does not mean the OP is going to file suit. A strongly worded letter may be more than enough to shut this down. Also, an attorney could advise the OP on what type of documentation they should be collecting (in case its needed).

        An attorney could also help the OP to evaluate their options. We only have a brief paragraph of info so its hard to grasp the OP’s full range of options but a more in depth review with an attorney could bring to light more/new options. For example, I could imagine a situation where what the employer is saying would qualify as slander per se (meaning you don’t have to prove special damages) but the OP won’t know unless they consult an attorney.

        The OP may decide they don’t have the time and the money for an attorney, but there is absolutely no reason the OP shouldn’t at least consider standing up for their rights before this turns into a bigger mess.

      2. Mike C.*

        Are you arguing to just let sleeping dogs lie, or a different course of action all together?

      3. Grace*

        Never underestimate the power of a good employment to calm the waters and make a company see reason (via phone call, letter, etc.). If OP wants some free legal advice she could try posting it on www dot avvo dot com for an employment attorney in her jurisdiction (i.e. state).

      4. KrisL*

        Having a lawyer write a letter is a little like having a large impressive dog in your yard to deter burglars. It will probably scare them enough to get the job done without anyone having to get bitten.

    5. Colette*

      I don’t think there is much the OP can do now, except point out that she resigned and that she can take legal action if they lie about it (and, realistically, choose other references if possible).

      It sounds like the first 2 steps are intended to prepare for a lawsuit, which (as I understand it) wouldn’t go far at this point since there’s no actual damage (yet).

    6. The IT Manager*

      While I sometimes agree with you for other letters, we really can’t tell from this letter where the LW is right now. I kind of suspect that she resigned for another job (2 month notice) and is therefore already happily employed so there’s really no current impact of the crazy and no need for her to take action.

      1. Lynn Whitehat*

        I think she’s better off dealing with things now, when it’s still fresh in everyone’s mind, than trying to prove what happened three years from now when the people involved might not even work there anymore.

      2. anon-2*

        Well, if they’re engaging in defamation – it has to be stopped. And should be.

        One thing that I’ve seen happen, when the gas of defamation floats through a company like a pungent odor, the employees breathe it in – and someone, somewhere in the company does something stupid which may harm that former employee.

        I once saw an instance like that — a friend of mine gave his two-week notice. Later in the day, they told him to leave, we’ll pay you the two weeks, etc. and so he did.

        The next day, someone called in, looking for him. Someone – unauthorized – said “He doesn’t work here anymore, he got fired!”

        It turned out to be his NEW employer, who immediately rescinded the offer of employment. Yes, lawyers got involved.

        It was settled amicably – our company’s lawyer contacted the new employer – letter of apology detailing what happened, my friend agreed not to sue anyone beyond his own legal fees and lost wages (paid to him without a hassle), he began working for the new company two weeks later than he should have, everyone was happy.

        After that, a memo went through the office (everyone sign!) stating that we are not to discuss the status of a former employee with anyone outside the company. All personnel inquiries are to be handled by HR, if anyone calls looking for him/her – “oh, sorry, that person no longer works here” is the only answer you give on the phone.

        1. Saturn9*

          If he gave two week’s notice and the employer said “No, today is your last day,” how is that not a firing?

          1. Anne*

            The employer has declined the two week notice period and accepted your resignation effective immediately. It doesn’t mean they’ve fired you. It’s the norm in some industries and workplaces to decline the working notice, with or without pay.

            1. anon-2*

              You weren’t terminated for cause. You resigned and they accepted your resignation immediately – and to avoid an unemployment claim, you’d likely be paid for the remainder of the notice period.

              And if someone there volunteered that you were fired (meaning, in most cases, terminated for cause) there’s trouble. Resigning from a job is not the same as being fired from it, usually.

    7. Dan*

      Well, the OP didn’t *ask* for that info. S/he just wanted to know if it was legal to do that after the fact. Advice columnists walk a fine line between “serving” the people who write the questions, and the readership at large.

      I deal with intelligent but sometimes very opinionated people at work. Sometimes I’ll ask a question and get 3x the feedback that I was asking for. These guys can be really, really difficult to deal with, because most of the time they waste my time without even answering the question that I asked.

      I think her answer here was perfectly fine.

  5. Jennifer*

    Why do I have the feeling that this retroactive firing means that they WILL “lie” and say that the OP was fired if anyone calls? Seriously, I strongly suspect that’s why they said it, because this is what they are going to do, legality or no.

    1. AMG*

      That’s why OP should have a friend call to pretend to be a reference checker (and record it, depending on state laws) to see what the company says.

    2. Katie the Fed*

      Yeah. I feel like a strongly-worded letter from a lawyer should nip this in the bud. “Based on recent communications with my client, it appears you are attempting to retroactively change the reason for her departure from resignation to termination. Please be advised that should you communicate such false information to reference checkers or any other person/organization, my client will pursue damages for defamation….yadda yadda” or some such thing.

      1. Mike C.*

        This feels like a great insurance policy to me. It shouldn’t even be that expensive to have such a letter drafted up.

    3. Ruffingit*

      Agreed because there’s no other reason for them to change it. It doesn’t matter whether OP was fired or not EXCEPT for future reference checks (and possibly unemployment, but that wasn’t mentioned here so we can’t know that).

      1. De Minimis*

        That’s my guess….maybe there’s some stat involving attrition that they want to keep low.

    2. Ask a Manager* Post author

      I think it’s possible that they really did find stuff after the OP left that shocked them and they feel like they would have fired her if they knew (or at least taken it very seriously) … and are just experiencing muddled thinking around the fact that it’s too late to do anything about it now. In other words, legit concerns, but ridiculous, poorly thought out response.

      1. some1*

        How would you have handled it if you were the employer in that circumstance? (That you discovered something after an employee resigned that you were have fired her for?)

        1. Apple22Over7*

          I’d hazard a guess that there’d be nothing you could do, at least not immediately. Fix the problems in the work that the resigned employee left, put checks in place to make sure the replacement hire/other employees can’t do the same thing, and be relieved that the employee has now left voluntarily rather than having to go through a potentially long, drawn-out and costly firing process.

          Of course, you’d be honest and candid in future reference checks, explaining that whilst the employee appeared to be doing good word, it was discovered after she resigned that she’d left gaping holes in a large project (or whatever), but that would likely be the extent of the actions you as an employer could perform.

          1. Ask a Manager* Post author

            Yes, this. The only thing I’d add is that I’d look for a way to civilly let the person know what had happened so that she wasn’t proactively offering us as a reference. That’s really hard to do without sounding like you’re being vindictive, but I think it’s kinder than not telling them.

          2. Saturn9*

            If I’m calling for a reference check and someone tells me the person I want to hire made some huge mistake that was only uncovered after they’d left… I’m sorry but I think that reflects much more poorly on the employer (for not noticing such a huge mistake) than on the employee (for making the mistake).

            (This is assuming it wasn’t something malicious that was intentionally hidden from the employer. But even then I’d still have some major doubts about the competence of the employer.)

            1. Ask a Manager* Post author

              I think it depends. For instance: “We gave her a lot of autonomy while she was here, but after she left we found a large backlogged of unprocessed donations that she hadn’t told anyone about.” I’d take that pretty seriously, regardless of whether or not I thought they should have managed her better. How they manage isn’t my problem or concern; how this person works is.

      2. Mimmy*

        That’d be my guess too; they probably don’t realize that the proper way to handle it is indicating “ineligible for rehire” in reference checks. My guess is that this is a small company without a dedicated HR person/department, thus may not always know the nitty-gritty of how to properly handle these types of situations.

      2. Mike C.*

        Which is a bit silly here in the United States. As most readers here know, you can be fired for just about any reason or no reason at all.

        Saying that “we found something that would have given us reason to fire the OP” is at it’s root, a meaningless statement. Not that it will be taken as such.

        1. anon-2*

          Mike – even though you can be fired for any reason (within the law, and within a company’s published policies) — it does not give a company the right to slander a former employee.

    4. A Teacher*

      My old employer didn’t tell reference checkers that they “fired” someone but they’d often imply that they “asked the person to resign or they’d be fired” even when the person resigned and left under good terms. We had several supervisors up to the owner that were just spiteful. I don’t know why but they were.

      1. Saturn9*

        Dear god. That’s even more detrimental than just outright saying the person had been fired. Especially if they happen to follow it up with some version of “We think it would be best to not discuss the particulars.”

        Congrats on getting out. No one should ever have to discover they’re working at a place like that.

    5. Just a Reader*

      I left a job once under good circumstances and the president of the company absolutely smeared my reputation after I left. She did this to everyone. For fun? It was a personal insult to her when people moved on.

      But to get a call like that, I think it’s more along the lines of what Alison says below about discovering issues after the fact. I wonder if they are costing the company money or putting it in a precarious position.

      1. Ami Lynne*

        Been there, experienced that. Mine is a very small industry and my former boss did his best to drive me out of it entirely. It didn’t work, and he was tossed out a year or so later.

    6. CIO/Director of IT, Cost Accounting, & QC (Jamie)*

      As soon as I read this my cup uncial first thought is that they have specific termination policies and they want to get rid of a current employee for doing the same thing they discovered about the OP after she left.

      Retconning the OP’s exit so they had a record to show they’ve let someone go for the same issue before to bolster their case. It’s wrong and could be fraud if they change the exit paperwork without indicating revisions with dates.

      Who knows, but it was the first possibility that sprang to my mind.

      2. Mallory*

        This seems like a likely thing. It actually reminds me of one time when my boss found out that a new employee had done some minor thing, and he yelled at her for it. Then a few days later, I did the same minor thing, and he said, Well, hell, now I have to yell at you for it, since I yelled at her for it the other day. And he proceeded to half-heartedly “yell” at me just to keep things even.

    7. Not paying compensation*

      I have seen compensation agreements that let the employer recharacterize the termination. For example, a bonus agreement that says: You get the bonus if you are employed when we pay it or if you quit or are laid off. You DO NOT get the bonus if we fire you for bad conduct. But if you quit and we discover within x months that you committed bad conduct, you are treated as if we had fired you and you do not get the bonus.
      The reason these agreements exist is so that employees who know they have broken the rules (and maybe are under investigation) can’t proactively quit and get paid as if they had behaved.
      It may be that this is the case with OP, and the recharacterization is not for all purposes (like references), but only for specific compensation.

  7. whimsy*

    I just want to say I always get a chuckle at the relationship analogies to these letters.

    Next time I get dumped I’m totally going to ask, “Is this legal?”

    2. some1*

      I used to jokingly tell my old BF if he wanted to break up with me it’d be like quitting a job: he had to give me two weeks notice, I wanted severance, and he had to find and train his replacement.

      2. Dan*

        Dating is an indefinite probationary period. Marriage triggers the severance package, aka alimony.

        BTDT.

      3. Fee*

        Ha, when my boyfriend and I got back together after a split I had initiated, he told me (jokingly) I was ‘temporary with a view to permanency’. Several years later I’m still on a rolling contract ;)

  8. Bea W*

    First I wake up to snow, and now this? What is this? Am I even awake? Wait. Maybe I’m dead. If I wasn’t dead when I started reading this, I have to be now because my head just exploded.

      6. Ask a Manager* Post author

        Well, it had to be said, because this is seriously the second-to-last sentence from tomorrow’s post: “My brain has exploded and is in small pieces on my keyboard.” Bea is prescient!

        4. Laura*

          I am really looking forward to tomorrow’s!

          Maybe I should get a plastic cover for my keyboard tonight, and apply it before reading tomorrow.

        5. louise*

          I’ve never looked forward to getting up on a Thursday before. Thank you for changing my life.

            7. hildi*

              This makes me think of a question: Do you try to update the day’s posts at certain intervals? I never noticed a pattern and assumed it was random. But your wording makes me wonder if you post at certain times easy day?

              1. Ask a Manager* Post author

                Yes! It’s usually midnight, 11 a.m., 12:30 p.m., and 2 p.m. EST. Sometimes I switch it up (and I’m supposed to be posting three instead of four daily but failing at that), but that’s the basic schedule.

        6. hayling*

          I am very excited about this, although you missed a chance to use my favorite word, “penultimate.” :)

      7. Lily in NYC*

        This is almost as exciting as anticipating the next Game of Thrones episode! (not sarcasm)

        1. Lily in NYC*

          I promise I meant what I wrote above. For some reason, it reads sarcastic to me even with the disclaimer.

          1. Jessica the Librarian*

            I don’t get a sarcastic vibe from it at all. I’m legitimately excited for GoT every week, especially if we keep getting episodes like that last one! ;)

          1. Parfait*

            In the game of staplers, you win, or you end up with a weirdly smooshed staple that didn’t go through.

  9. Bea W*

    They can’t fire you two months after the fact. That would be like telling your boyfriend two months after he broke up with you that you’ve come to realize that he was deeply flawed and so in fact you broke up with him.

    I actually had an ex-bf do that to me, not 2 months later but 3 or 4 days after I broke it off with him he called me and did exactly that but in a long-winded painful way that was like a being stabbed with a thousand knives. I can’t even begin to describe the level of messed up that was, but the OPs experience pretty much hits it on the nail. It was that messed up.

    1. Ruffingit*

      I knew someone whose ex-boyfriend would text her with stuff like “I am SO moving on from you…” UH OK then. I always thought that was weird because she broke up with him and he felt the need to tell her he was moving on. That is not something you tell the ex who broke up with you, it’s just something you do quietly. It reeks of desperation to contact an ex to tell them why they are so awful and you would have broken up with them first, but…

      Seriously? Pick up what’s left of your dignity and hang up.

  10. Legal jobs*

    I wonder if this reflects the belief that employers now share they call all the shots even after you leave the job?

    Maybe I m reading sites like this too much as I search, but descriptions like these (e.g., descriptions that sound insane) seem to be more common than I would have thought

    I read your prior list about thr employer creepily calling at 4am or the employers cheating on wages

    1. VintageLydia USA*

      If it makes you feel any better, people with healthy and nontoxic work environments are far less likely to be looking for advice from Alison, so we won’t be seeing that here.

      1. Legal jobs*

        It does help. Thank you.

        One of my great fears is ending up in another toxic environment .

        1. ArtsNerd*

          I don’t have time to look up specific columns, but there are plenty in which the comments are full of survivors of toxic workplaces singing the praises of moving out of there into better situations. (I’m one of those myself.)

          Every workplace has its issues, but some are MUCH better than others and this blog (and especially Alison’s interview guide linked to the right) can help you screen out for future toxic situations. Not 100%, I guess, but there are plenty of times when it’s tempting to ignore red flags just to get the job – when you should be paying very, very close attention to them.

    2. Norma Rae*

      You’re not reading too much into it, just seeing what’s there. Prior to the internet, all you could do was complain to your friends and family, or your union if you were lucky enough to have a good one. The internet provides a forum for discussions like this. Also playing into this is the fact that there are so many people looking for work that by and large, employers can treat employees any way they like, barring some narrow and hard to prove circumstances. (Yes, it’s legal!)

  11. Nodumbunny*

    Here’s my conspiracy theory, just for fun: The LW has some dirt on the former employer, and they’re trying to pre-emptively discredit him/her by labeling it as a firing for malfeasance in case he/she dishes the dirt. Then they can say “he/she was fired and this is just sour grapes.”

    1. Not So NewReader*

      The best defense is a good offense.
      Sigh.
      You know, I have seen this one before. It is possible that an employee might not even know what information she has that is setting the employer on edge.

  12. Sunflower*

    OP I would refrain from using this company as a reference. It sounds like there is some sort of bad blood there. It’s crazy to attempt to retroactively fire you but if something questionable was going on while you were still working there, as Allison noted, it’s completely legal for the company to reveal that occurred and you are ineligible for rehire. Maybe they are just nuts and you didn’t really do anything but if there is something there you are worried about potential employer’s hearing, I would watch out on the reference front or at least have an explanation prepared.

    1. Sadsack*

      Good point, the former employer may say that OP resigned and they later confirmed that she had been doing whatever it was that was wrong.

    1. Ask a Manager* Post author

      No! Sometimes the spam filter temporarily stops working and when it does, it holds everything submitted during that period for moderation. Usually it’s fixed within a couple of minutes. But that said, I don’t see anything from you in there!

      1. Bea W*

        oh! Everytime that happens to me I immediately start re-reading my post to see what four letter word I let slip without realizing, every time.

  14. Lisa*

    I had this sort of happen to me by Home Depot. I resigned, gave two weeks notice, then was notified by letter that I was terminate for no show. They never bothered submit to corporate that I resigned, so if I ever used them as a reference, HR would only see that I was terminated and tell people that.

    Let’s fast forward a few years for OP. No one is at the company that remembers the circumstances; therefore, they will tell people you were terminated based on their records.

    Not sure how to fix this scenario before it occurs other than a strongly worded letter from a lawyer like AAM says saying that if anyone mentions that you were terminated from the company with regard to references, you will sue for defamation and that you want your internal HR file to note that so that it is not forgotten due to turnover.

    1. Lisa*

      Also had a boss that would claim people who left were fired or it was a mutual decision to avoid telling the truth or looking bad.

    2. lindsay j*

      A lot of retailers etc do shady things like this to avoid paying unemployment. IIRC – at least in my state – termination for NSNCs means job abandonment, which means you aren’t eligible for unemployment, while you might be if you resigned for certain reasons.

      Termination for NSNC was also preferable to the employer to other types of terminations because with other terminations you would either immediately or eventually be eligible for unemployment as well. I never participated in this but I have several acquaintances who say they were specifically told by their company that when they were getting rid of employees to do so in a way where the company didn’t have to pay out unemployment as much as possible.

  15. Liane*

    Even though it sounds like the OP has a new job, she should consult an employment lawyer, as it could jeopardize the new one.
    I have a close friend who did get fired over something similar. He was let go from Job1 for, he was told, A, and quickly found work at Job2. Then he was fired from Job2 because they learned that Job1 said Friend was fired for B, not A that he’d put on his application. (Maybe job2 let people start work before checks were complete or maybe someone had a contact at Job1?)
    He was angry and upset–who wouldn’t be? He did get that sorted out since Job3 didn’t have a problem hiring & keeping him.

  16. some1*

    Here’s the thing about the reference thing, though, if any of you folks out there who do hiring called a candidate’s old workplace and find out they were terminated, do you tell the candidate what the old employer said, or just decline to offer them a job?

    My point is, how is the LW going to be able to prove damages? Call every employer they ever apply to that rejects them and say, “Did you decline me based on a conversation with XYZ Company?”

    1. KJR*

      I would frankly surprised if they said anything. It’s getting rarer and rarer that anyone will give out anything but the most basic of information (dates of employment, positions held).

      1. Ask a Manager* Post author

        Actually, it’s pretty easy to get references! You call the manager, not HR. Some places do have really rigid policies, but they’re not the majority.

    2. Ruffingit*

      It would be hard to find out, but I think it would be helpful to have a friend periodically call for you to check your references so you can then see what is said. Maybe do this two or three times over a span of a few months to see what is said.

  17. Tiff*

    I support the strongly worded letter by an attorney option. This could really bite OP in the tush later.

    1. Jaimie*

      I’m concerned that contacting an attorney is too much escalation, too fast. Personally, I would start by writing a letter myself, and **maybe** asking if I could come in to the office for 15 minutes to discuss the situation (depending on what I knew about the company in general). But likely I wouldn’t bother doing anything unless I didn’t have reference there who could be called directly.

      1. Tiff*

        I disagree. The company has escalated the issue already by sending OP a letter retro-actively firing her. IMO, suing would be too much, but a stern letter from a lawyer should be enough to get them to correct their records. I think the company has already proven they aren’t reasonable.

        1. Jaimie*

          But the truth, assuming that she actually did do something wrong, is worse than the company just saying that she was fired. And they are allowed to truthfully tell reference checkers what happened.

          What does it accomplish to tell them not to slander her? All that will do is make her look like the type to “lawyer up” in a defense way. My opinion is that she is better off looking humble and trying to repair the relationship, rather than escalating it further.

          1. AMG*

            I would rather look defenseive and give the impression that they can’t push me around than come in trying to talk to Irrational People with Random Ideas. In all fairness, I tend to go the defensive route. But I still think a lawyer is justified.

      2. Anon 1*

        I have to disagree. We have a very small paragraph of information and there could be facts we don’t know that would be very relevant to an attorney. Ultimately, it may not be worth the OP’s time or money. That being said, I think more information is always better than less information. Many bar associations offer one-time low cost consultations if you use their referral program. The OP may decide its not in their best interest to pursue anything, but I don’t think the OP should be dissuaded from at least consulting an attorney to get more information.

        1. Jaimie*

          Well, agreed. We don’t have all the facts, and if we had them all, it might be obvious that she should go to an attorney. It also might be obvious that it would be a waste of time and money. It costs her almost nothing in time or money to give it a shot herself without escalating the situation, though. And in that case at least she is taking responsbility for herself and it seems more professional. So why not try?

          1. Anon 1*

            I don’t disagree that she shouldn’t try calling first. Personally I don’t think I would write a letter or ask to come in. I wouldn’t really want to give the company any more room to respond in writing and start some chain of documentation that gives them the opportunity to create some bogus story line. But I’m a worst case scenario thinker, so that is just me.

            It never hurts to call and try to resolve things, in fact when I worked as a mediator we wouldn’t take a case unless the client had first tried resolve the dispute themselves. But if that doesn’t work the OP shouldn’t be dissuaded from finding out their legal options.

    2. Elysian*

      Polite phone call, I think, with a follow up letter if they employer seems unreasonable, would probably do it. It’s easier in a phone call to frame it as “Tehe, I’m so confused! I’m sure you must have a reason!” and then when they don’t have a reason, the sternly worded letter can come next.

      1. Rayner*

        Well, I don’t think you need to phrase it as “Tehe, I’m so confused.” The OP is presumably a professional person, in charge of their own career. More of a “Hey, I’m hearing this information, and I’m not sure why. Is there someone who can explain it to me?” kind of conversation.

        I’m not picking on you – just your choice of wording. It’s about appearing professional, not ditzy and foolish, which the whole “tehe etc” thing feels like.

        1. Elysian*

          Well, I’m sometimes play the part of a ditzy foolish lawyer, so that’s how I would phrase it.

          1. Jaimie*

            I’m with you on this one. Her end goal is to get them to be as hospitable to future references as possible. Focus on the goal, not on being “right”. A better goal would be to worry less about saying she was fired than them saying that she engaged in misconduct.

            That means at least trying to work it out without a lawyer first. I think that what you are trying to say is that a non-confrontational attitude might work, as a first pass. I call that my “Columbo act”. I would have her call them and explain that since she wasn’t fired, they shouldn’t say that she was. And honestly that will likely do it. A letter from a lawyer is so antagonistic, it’s going to make things worse, and it’s not needed yet.

            And to the extent that she can figure out what they thought she did wrong, she should do that, too, if it’s possible to do that without digging in too deep.

  18. LBK*

    The only way I can think that this makes sense is that they had started an investigation against the OP for this non-compliance before she quit, and now the investigation has concluded and they’ve determined she would’ve been fired if she were still working there now. But why they would bother to do this unless it was something illegal/damaging to the company and they want to pursue legal action as a result is beyond me.

  19. Anonsie*

    Ok maybe this sounds crazy, but I think the former employer may have been doing a pretty nice service for the OP here.

    So let’s say they found something after she left that they decided meant, as Alison says, she’s ineligible for rehire and they won’t give her good references because of it. Maybe their internal system only lets them mark it as a firing or something, I don’t know, maybe they said “like a firing” and the letter writer misunderstood. Maybe they said it’s a firing now because they’re weird.

    Either way, they contacted her to let her know that things have changed and that she could possibly have a very bad reference on her hands. That allows her to A) know what’s being said so she can address it if a reference contacts them and hears it, but also B) not give them out as a chief reference at all.

    1. Jaimie*

      I’m basically in agreement with this. Telling her that she was retro fired is weird, but letting her know that she’s potentially blown her reference is a service.

    2. Rayner*

      But it doesn’t make any difference, and if they have a system that only lets them mark if someone is fired or is employed, they have a terrible system. People resign all the time, for lots of different reasons. People get laid off. People go on leave etc, and their system should be able to cope with that.

      Also, two months, and they’ve only just discovered issues now that are so seriously, they can’t just say, “sorry, can’t do references!”, they have to go into their system and act like she never resigned, they just fired her? Fair enough, but they don’t have to retrospectively change her status as a ‘resigned’ person to a ‘fired’ person. They can just update their internal hiring lists to say, “not this person” telling someone who’s already gone that they’re not allowed back is redundant and petty.

      And even though they contacted her to let her know, they’re still a terrible company for doing it that way, and for being so passive aggressive about it.

      1. Anonsie*

        I mean to mark her as ineligible for re-hire somewhere or something like that. The only “bad” option is “fired,” maybe. That would be dumb but that doesn’t mean it’s not a strong possibility.

  20. fposte*

    I think if the job experience is retroactively up for grabs, the OP should request a retroactive raise and title bump.

  21. Jim*

    The problem with the answer is that, to a large extent, what her old employer did was “legal”. How is OP going to stop the old employer from telling others that she was fired? She’d have to spend time and money hiring a lawyer and then she’d have to prove she was harmed by it. And unless she still has documents that shows she resigned and her old company accepted the resignation, it will be the OP’s word against the old employer’s word.

    1. Jaimie*

      Agreed. There’s not a lot she can do, other than to: (a) try to take responsibility for what she did (if anything) and try to win back some credibility with them and (b) write them a letter to remind them of their obligations not to slander her (she wasn’t actually fired, so they can’t say she was).

      But really she is sort of up a creek unless she can accomplish (a), and that’s why I wouldn’t escalate this with a letter from a lawyer. Because if they are correct about her having done something wrong, then the truth is worse than them just saying she was fired. An injunction therefore wouldn’t mean much to her, and damages would be just about impossible to prove.

      1. Legal jobs*

        From a legal, emotional and effective use of time perspective, the OP should not show any give regarding this issue.

    2. Jennifer*

      Hah, right. “Legal” generally means that “they can get away with it because it will be years of time and a lot of money out of your pocket to fight it.”

      1. Jim*

        The other issue is that if OP gets a lawyer to write a letter to the ex-employer threatening any kind of legal action to correct the record, then all the ex-employer needs to say to prospective employers is “I can’t talk about OP because she’s threatened us with legal action”.

        Just another way to smear the OP, if that’s the ex-employer’s game.

        1. Mike C*

          Why is taking legal action a smear against them? If someone commits a crime against me that is serious enough that it involves the legal system (and slander is a serious crime), why does the victim look bad?

          1. Dave*

            Mike C –

            And I would be upfront with any employer about why you quit and that they wanted to retroactively change your resignation to a termination. You consulted an attorney to prevent any potential slander/libel regarding how/why you left the company before it came to be a problem. Any reasonable employer should understand this.

            The only caveat is that the company can say that you mucked up a project and the issues were found after you left.

          2. Saturn9*

            The company whining about the OP taking completely reasonable legal action has the potential to be a smear because employers always give ex-employers the benefit of the doubt for some reason. It’s not fair or right but this is the convention in employment situations.

            It’s sort of like how “My boss was verbally abusive to the point of threatening physical assault and I couldn’t handle it,” becomes “I left due to a cultural fit issue,” or something similarly banal.

      2. anon-2*

        Not when slander is involved and OBVIOUSLY so – a good lawyer will take a case on contingency if the evidence is on the table.

  22. Stephen*

    ‘Great. I’ll expect a cheque for severence in leiu of notice
    by the end of the week then?’

  23. Clerica D. McClerkykins*

    Omg, an old employer did this to me. It was the 7th or so of the month when I said I was leaving and I was going to work out the month, but on around the 22nd, my supervisor said I didn’t have to finish the whole month if I didn’t want to. I was really over that place so I took her up on it. A few weeks later I got a letter saying that since I quit without notice (?) and had been placed on “several final warnings” (???) in the past year, I was being let go for disciplinary reasons and would be ineligible for rehire. They also sent a bill for vacation hours they felt I owed to them for leaving mid-year, which was BS because your vacation bank was updated at the end of each year and they actually owed me vacation time for leaving early. I was moving at the time and put off dealing with them for months, at which point I figured the hell with it. Never heard another word.

    It’s still not clear to me how someone can be on several final warnings at all, much less without knowing about it.

    I have to wonder who sits around an office thinking up this stuff.

    1. Ruffingit*

      UGH, that sounds seriously dysfunctional in so many ways. Do you have clue as to why they would do that?

    2. Bea W*

      I know exactly who sits around an office thinking up this stuff. This sounds totally like something an certain ex VP of Finance at a former employer would do, right down to the bill for vacation time. Some people are just not right in the head.

    3. anon-2*

      There are organizations that assist large companies in obstructing unemployment claims. A friend of mine was a victim of that, and he eventually got all of his unemployment money. They can’t get away with that here in Massachusetts easily, because of penalties built into the system for companies that pull stunts like that, but they do in other states.

      I also worked at a place where there was a boss from hell – who tried to keep an employee back from an upward transfer — by trying to put her on disciplinary action – RETROACTIVELY!

      That was the only way the boss could hold her back — but a quick meeting with her, the boss, the boss’ boss, and HR — “Going back to work for you -is not an option, and that is NOT negotiable. So only two things remain –

      a) I go to my NEW position and you expunge this letter, and I think HR will expunge it happily because my attorney has a copy of it and

      b) if I do NOT go to my new position, I am out the door right now. Oh, this “retroactive probation s**t, we’re going to let the lawyers handle that, if that happens, OK?”

      “You have TWO minutes to make your decision.”

      She went to her new position. The “retroactive probation” letter was never submitted to HR, she refused to sign it anyway so it was never forwarded there.

      Corollary note = sometimes it is best NOT to sign documents like that..

      1. anon-2*

        … because when a manager is about to do something stupidly self-destructive, and extremely injurious to the company, it might be a good idea to give him/her a chance to back away from it….don’t assume that the manager is necessarily smarter than you on these things.

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