I have been at my company for 13 years. Things have been really bad lately and they just announced they are laying off 10% of employees by the end of the summer. They haven’t provided any other details. As I said, things have been bad, I am stressed, over worked and the whole thing is making me sick. I want to ask them to lay me off. Can I do that? Will I be denied unemployment if I do this? Should I just go on medical leave instead? Please help!

–Get me out of here!

Dear PLEASE,

You might be surprised to hear, or maybe not, that I get this question, or a similar question, a lot.

I’m guessing you are banking on two things in this layoff pipe dream: you will receive unemployment and severance. And in the puffy clouds in your head you are thinking those dollar amounts are pretty grand. Now, I don’t know the severance plan they are offering, and I don’t know what your financial status is, or your budget, but there are a few of things that I would advise you to think about before asking for such a thing:

1. How much unemployment are you eligible for- go to your state’s unemployment insurance (UI) website and look at the eligibility requirements. Look at the federal website too, because after you’ve exhausted your state benefits, you might be able to apply for federal benefits.
2. On the same website, look at the benefit tables. In CA, the maximum benefit amount is $450 per week.  How much you are paid weekly is usually based on your highest total quarterly wages of the last 4 quarters. If your annual salary is around $50K, it’s about 46% of the wages per week you made in the highest quarter. However, let’s say, your annual salary is $60,000, and your highest quarter for the past year was $15,000 (or roughly about $1,250/week). You’re still only going to receive $450/week, cutting that percentage down to 36%. That’s pre-tax, by the way! Yes, the government taxes you on the piddling benefit they are providing you. Yay government!
3. What about your health benefits? Are you covered under a spouse/domestic partner’s plan? Will you have to go onto COBRA? How much will that cost? Depending on the plan and your company, that could be between $400-$2,000+/month.
4. How much severance would you receive if you are eligible (and don’t assume that you are)? And remember a lot of companies tax severance at the supplemental rate for federal and state taxes, which, depending on the state you live in, could result in a total tax bill of 40-50%.

OK, so let’s say you’ve thought about all my questions above and you still want to be on the Jack Welch express out the door. Your question is if you can ask to be laid off. Sure you can! Will it work? Maybe. Will you still be eligible for unemployment? Maybe. (BTW, do y’all get sick of me answering questions with the word “Maybe”? Yeah, well, get over it. This is the spectrum of HR, homies, so deal). Will you receive severance? Maybe. Ha-take that!

Try and do some recon (I’m not sure how you find this out without tipping your hand, but these are things that will help you form your strategy):

1. How bulldog-ish is your company when it comes to UI claims? I’m guessing they are expecting a lot of claims coming out of this layoff. However, do they manage UI claims themselves? Do they outsource?
2. What’s the severance plan? Is everyone eligible?
3. Are they offering retention bonuses to key employees who are staying? Could you possibly be eligible for that?
4. Who is being laid off, are they targeting a specific division or area in the company? Maybe they are doing the whole “bottom 10% thing” or just targeting newbies.

Here’s the thing, I don’t know enough about your job, your performance, your manager, your HR Department or your company to make an educated guess of how this is going to work for you. If your Company/HR Department is/are a bunch of hard/asses, then this could be difficult. If you are a high performer in a critical position, why would they lay you off and then pay you for the privilege?

Look, I’ve negotiated plenty of “let’s call it a layoff” scenarios with employees over the years. My goal in those situations was to get rid of problem employees and give them the extra bone of allowing them to file for UI and they could tell their next employer that they were “laid off” as opposed to “fired for having sex in the supply closet with the mail guy.” So, again, I ask you, and you should ask yourself, why would they lay you off?

Something else to think about: are you a woman? Are you over 40? Are you working in a department where everyone has penises and is younger than you? Guess what? You are stuck there for life! LIFE! If your skin has some pigment to it, your chances just went down even more.

Why? Up there, in the atmosphere of the Executive Floor, they are making their wish list of all the old slow poor performers that they’ve been wanting to get rid of for years but have been too chicken shit to actually discuss performance, develop, etc. with. Next, HR comes in and adds demographics to that list. No smart company is going to want to look like they are targeting a particular ethnic group, gender, age group etc. If you fall into one of these groups, it might not make sense for them to lay you off. Some of them get brave and think they can lay anyone off because they are giving you a severance package in exchange for your signature on a release of claims. Remember, dear readers, that you cannot waive your right to not be discriminated against. Companies who think that way are playing with fire, so most don’t.

You should think about your role and position in this company. Maybe you can spin this as a win-win for all involved. They might be relieved, more than happy to get your sorry ass off of their headcount reports. They might be suspicious. They just might be stupid and not understand why you are asking, or how they can do this.

And now, I am going to hopefully briefly explain how UI works. I am going to assume you live in CA (though I imagine it’s similar in other states). OK, it’s scenario time! Every kid loves scenario time!

You ask to be laid off, your company obliges you. You apply for unemployment, and put as the reason “laid off.” To combat fraud, the UI office sends a notice to your employer letting them know that so-and-so just applied for benefits and said they were “laid off.” The employer is usually given 10 days to refute that statement.

Best case scenario: They don’t hear anything different from your employer and hooray! You get your little ATM card from the state.

Worst case scenario: The employer responds, lists the reason you left as “asked to be laid off.” The state UI agency does not agree that you were unemployed due to “no fault of your own” and denies your claim.

You appeal- provide the documentation you received from your employer. Hopefully, you made sure they put “layoff” on all the letters, etc. they gave you. Plus, if they are giving you severance, this adds more evidence to your claim that this is a lay off. If the appeal still doesn’t work then you can get a hearing, yes, a hearing in front of a real live judge and everything. The great thing about hearings (for you) is that employers don’t usually show up and then the judge usually rules in your favor.

So, what went wrong? Well, remember, your employer has a financial interest in not allowing employees to draw unemployment benefits. In CA, and probably other states as well, employers are graded based on the amount of money they’ve paid into the UI program, vs.  how much has been paid out against their account. The worse grade you have, the higher your unemployment rate is. Personally, I’ve never been at a company that wasn’t an F+ (yes, F+, isn’t that cute? I’d love it if my CFO didn’t yell at me every year).

What does that mean in $$?

In CA, employers pay between 1.5%-6.2% into UI on the first $7,000 of wages paid to an employee. Let’s say you had 100 employees that at some point during the year made $7,000. If you were an A+ and had that, what we in the biz call “the purple unicorn rate,” of 1.5%, your annual UI expense would be $10,500. Now, if you were an F and your rate was 6.2%, your annual UI expense would be $43,400. That’s a difference of $32,900. It can take years sometimes to get your rate down, years of low charges against your account.

That’s a big difference. Did you know that many companies, especially large companies, will outsource their UI administration to other companies that specialize in fighting UI claims, thereby reducing the UI rates of their customers? Yes, it’s true. They do this in two ways:

1. They fight every claim, every appeal, show up at every hearing.
2. They try and move you onto disability. Why? Because disability is paid for by employees, not employers, so it doesn’t count against them. How do they do this? The same way you got your medical marijuana card, “back pain.” The hardest diagnosis in the world to disprove.

You see now why I said what I said above. I can’t really predict if this will work because I don’t know your company. I’m assuming they aren’t going to fight too much because this layoff is already giving them a hit, but you never know.

Time to keep it real. Every kid loves keeping it real time! I get it. You hate your job. You have been there for 13 years, that’s a petulant adolescent’s worth of time. You’re thinking you can take your severance, maybe go lie on a Hawaiian island for a few months sipping Mai Tais and choking on smog. Maybe you won’t need to work again, maybe not. Maybe this could be the best thing that has ever happened and maybe the worst.

If you want my advice, and apparently you do, I would be patient. Wait and see what happens with the layoff and everything else. I’ve gone through millions and millions of mergers and layoffs and reorganizations (maybe not millions) and the one thing I’ve learned is that things never look at the end the way you thought they would at the beginning.

If it’s really bad, and you just can’t go on for another minute, then go out on leave. You state above this might be an option for you, call your doctor. Take a month off. Repeat after me: “back pain.” Eh? We’re either gonna save the world or go straight to hell but at least we’ll have THC Jolly Ranchers to console ourselves with. This buys you some more time, clears your head a bit, maybe you’ll feel completely different about all of it when you’re done. Plus, State Disability Insurance pays more than unemployment! I’m just saying.

And, as I’m sure you know because you read my 2012 treatise on LOA, your benefits will be cheaper. And again, this doesn’t make you immune from being laid off (despite it being designated FMLA) because if they were going to lay you off anyway because of your position, or whatever, they still can. Maybe you can have the best of both worlds, a month off and then laid off with severance.

Take a deep breath. Sit back, everything is going to be OK. Or it won’t. Who knows? Good luck though, I guess. You can do it, I suppose!

Good luck out there,

Madame

This post originally appeared on Fierce and Nerdy June 9, 2013.

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Written by: Madame HR on October 20, 2013.