Q. We had an employee who was not working out. We gave her the choice of resigning or being terminated. She chose to resign. We were happy because we understand that an employee who resigns is not entitled to unemployment compensation under Texas law? Are we right? –S.G.
A. The question the Texas Workforce Commission asks is whether the separation from employment was voluntary (initiated by the employee) or involuntary (initiated by the employer). Whether an employee is entitled to unemployment benefits depends on the answer.
If the employee files a claim under the circumstances you described, she will be eligible for unemployment unless you can show that there is another reason that she should be disqualified, such as misconduct. You have the burden of proof.
The question of who initiated the termination is often disputed, so be careful to document the separation. A shorthand (but not infallible) rule of thumb is that the person who first raised the possibility of separation from work initiated it. If it was the company, she’s probably eligible.