We planned a termination today for one of our software engineers that were not meeting stated milestons, he was put on probation for 60 days and no improvement was made. today we prepared all termination paperwork and in the meeting he says he wants to resign and not be terminated can they do that and how does that affect us or him ??

Whether you allow him to resign or not is up to you. Resigning means he is less likely to qualify for unemployment but if he claims he resigned in lieu of being fired, it won't make much difference either way.

If he voluntarily resigns, he will NOT be eligible for unemployment compensation, unless his resignation was motivated by objectively intolerable working conditions, which from what I understand in this case are not an issue.
Thus, as an employer - you are better off having him resign, because if you terminate his employment, he will be eligible for unemployment compensation.

Thanks,

Arkady Itkin
http://www.sanfranciscoemploymentlawfirm.com

That's interesting because in most states, a resign-or-be-fired situation is treated as being fired for unemployment purposes.

Are you saying that is not the case in California?

Good point. Did I misunderstand? I thought the employee chose to resign on his own volition.
Frankly, I don't know why an employee would choose to resign. There are no advantages to that at all. The only concern that he probably has that lead him to asking for resignation is being concerned about having termination on his resume / references, but it doesn't really matter for the sake of future employment, as his current/past employer should not be disclosing any information being hiring date, termination dated and duties and should not be discussing circumstances of termination, unless they involved violence or other very serious misconduct by employee.

There is no law that prohibits an employer from stating someone was fired or resigned so long as it is the truth. There is no requirement that an employer stick to name, rank and serial number and several reasons why it is beter that they not as long as they are honest.

On re-reading, perhaps I'm the one who misunderstood.

I think an employee for reasons of reference is likely to request a resignation be placed on his/her file.

Further there is strong case law that will support a negative reference that is unfounded and another equally strong case that will support a positive reference wherein the employee was a "terror."