Confidential Separation Agreement

Question to Ask the Workplace Doctors about revealing a resignation:

Recently I was terminated by a local police agency for what my attorney and I felt was a witch-hunt; however ours is an at-will state. I was terminated for calling in sick one day and not the next. My attorney worked out a confidential separation agreement and I was able to resign nunc-pro-tunc (go back in time) and the information that lead to the termination was sealed by the town and the town attorney. My question is: do I have to reveal the termination or the resignation? My attorney told me that it is a resignation; however, all of the agencies that I have applied for indicate that it is a resignation in lieu of dismissal. Or should I even tell the agencies about anything because all of the information is sealed?

Signed, Should I Tell?

Dear Should I Tell?:

We aren’t attorneys, so our advice should not be construed as legally accurate in your specific situation. I think you should ask your attorney about the technicalities of this. However, I can share some thoughts that might be helpful, outside the legal aspect of it. If I am clear on what happened, this is the situation: You were either an officer or a non-sworn employee and you called in sick one day, but when you were sick the next day, you did not call in, you simply stayed home sick, thinking the first phone call took care of the second day.

You were fired because of that–which leads me to think you had relatively short tenure, had been involved in other issues before this one (whether or not action was taken), or there were other organizational issues that led the chief and the hiring authority within the city to take such severe action over a potentially problematic, but relatively minor, violation. If your attorney worked out a confidential separation agreement, and a nunc-pro-tunc resignation (your resignation is shown legally as having happened BEFORE you were fired, so it stands in place of the firing) I would assume the city agreed to those steps to avoid a lawsuit or to settle a lawsuit.

Whether or not my speculation is exactly accurate, it is likely close enough for this discussion of it. You say that the agencies with whom you have applied have listed your former work situation as being a resignation to avoid dismissal. (In lieu of dismissal.) If you have not said anything about a disciplinary action that could have resulted in dismissal, someone at your former workplace is providing information that may be in violation of the agreement. You should let your attorney know that and ask that it be stopped.

If you have been giving them the information, your attorney may advise you not to do that. But that brings up a problem with termination and resignation agreements in police agencies. It all sounds well and good to say a firing never happened. But it did, and it won’t be a secret. Even a resignation in lieu of dismissal will have the facts known. In the private sector you could go to some other company, and the people from the former company likely wouldn’t feel any obligation to talk about your work history.

In law enforcement there is often the feeling that a department that calls about a former employee should be warned about potential problems. Sometimes this is the result of unfair labeling, bias, or dislike, and sometimes it is merely telling the truth. There can be HR policies and agreements that say no information will be given, but often there will be individuals who leak the information one way or another. And, if the person leaking the information is not currently employed by the city, they are not bound by the agreement. Further, unless every employee is told to not talk, those employees are not personally in violation because they didn’t know they weren’t supposed to say anything. (Though they likely are in violation of policies internally.) Another problem with separation agreements is that in the process of applying for a job in a police agency, a candidate who has worked in some other agency is often asked, either in an interview or in a polygraph examination, about prior disciplinary actions or investigations.

Failure to tell the truth will show on a polygraph as indicating deception.An analogy: If you had your name changed legally through a nunc-pro-tunc decision (not all name changes are this way but some are), it is as though you never had another name. You could truthfully say you never had another name, because the courts say you never had another name. But in your heart and mind you know you did, and during interviews and polygraph tests, the fact that you DID once have another name is likely going to come out. Then, all your protestations earlier will sound like lies–even though legally they were the truth.

So, your actions now need to be focused on one or two of the following:

1. Stopping your former organization from giving out information about your case.

2. Sticking with your legally accurate story and finding a way to do that most effectively.

3. Saying you resigned, and giving a good reason for it, but if asked further, telling the truth so you can explain the situation.

Your attorney would likely advise you to take advantage of the agreement he won for you. If that is the case, ask him what he suggests you say when questions arise during background investigations or polygraphs. Some other things to consider: Think about the size of the organization to which you apply. If you apply to a large organization, they will not only check these issues more closely, they will nearly always remove a candidate they think might have had problems. They have many candidates to choose from, even for most non-sworn jobs. But, smaller agencies do not have a large employment pool. When they need to fill a position they look for candidates who will do the job and who are ethical, responsible and will work well within the community or the assignment. They are more likely to be willing to accept a candidate who has had minor problems–or even major problems–at a former agency.

When you are asked about your prior work history, say that you resigned, and give a good reason. The best is simply to say that you wanted to move to another organization for some positive reason–your situation would dictate the best reason. It might be for advancement opportunities, to be in a different sized organization or community, or some other reason. Background investigators know to expect that type of answer, but they don’t usually press candidates to say negative things about the former employer. If the investigator pressures a bit about your prior job, you will need to decide how to respond. If you respond truthfully without a great deal of pressure, you can explain your view of it–it was a misunderstanding on your part about the sick time policy. But if you wait until the investigator has had to ask over and over,or has found out another way, it looks more like purposeful deception. That is something to consider.

If you have said you resigned, and you insist that is the case, but the investigator says he has information that it was in lieu of dismissal, and you don’t want to admit that, ask him where he got his information, and insist that he contact the HR person at your former agency. Do not list any references who would say differently than your legal story would indicate.I can imagine this is a very difficult situation. However, your preparation for an interview should focus on showing what you have to offer. If you have enough to offer an organization, and you can adequately answer questions about leaving your old organization, you will find another job. If you find you are repeatedly not being hired, think about what else might be a barrier. It is almost certainly not something this relatively minor. Consider your overall work record. If you have signed a release, those will be available to an investigator.

Repeated hints or even mildly negative remarks on evaluations are looked at closely. Use of sick time, tardiness, going home early, many misunderstandings about the policies–all of those are considered danger signs for hiring. You can overcome those, but it won’t be easy.You may find you will need to find a job in an organization that is not your first pick. Then, give them excellent work and build your resume so you can stay an honorable amount of time, then move to another place that is more what you wanted or needed.If you have a good or excellent work history except for this one thing, your challenge is not so severe. Explain what happened, point out all the skills you have and how you can use them, and commit to providing the highest level of work at the new organization.As I mentioned at the beginning: We are not attorneys and do not know the legal ramifications of your case. That is why I think you should talk to your attorney about it before you decide to do anything. I just wanted to share some non-legal thoughts that might be helpful.If you have the time and wish to do so, please let us know what happens. Best wishes.

Tina Lewis Rowe