Every state unemployment agency has the enviable job of determining which separation standard applies when an unemployment claim is filed. Seems like a layup (a little March Madness nod), but often it isn’t so clear.
Adjudicators must determine whether a claimant was:
1.) Discharged from their employment
2.) Quit their job
3.) Are still employed
They must decide who initiated the separation of employment to apply the proper section of law. If the separation appears to have been initiated by the employer, the discharge statute then controls whether that individual is eligible for UI benefits and the legal burden of proof is on the employing unit. If it appears the employee initiated the separation, the voluntary quit statute is applied. This burden of proof falls on the claimant.
Straightforward right? Not so much.
Some separations can be confusing to employer and claimant alike, particularly where there was little or no proper communication. Here’s a couple head scratching (but not uncommon) scenarios you seasoned HR professionals or management leaders may have experienced:
The “act like nothing ever happened” employee
If an employee is a “3-day no call no show” and the employer’s policy states that is considered a “job abandonment or voluntary quit”, what happens if the employee shows up to work on day four?
Do you fire that person?
Are they still considered a quit?
What if the employee says they don’t want to quit and never intended to do so?
A few things to consider are the claimant’s “state of mind”, during the period of absence. As all state adjudication make exception for this (more on that later). Other considerations like whether they were able to notify their supervisor can also blur the lines. Throwing another curveball, the employer may fire the employee for violating a no-call, no-show policy, only to have the claimant tell the unemployment office they quit.
Ultimately, the unemployment adjudicator must make that determination. However, an employer’s best line of defense is ensuring clear, well-written policies are provided plainly outlining an obligation to communicate with them in the event of an absence. This safeguard employers as much as possible should the burden of proof shift from the claimant (a resignation) to the employer (discharge for policy violation).
The “heat of the moment” employee
“That’s it, I’m leaving, I can’t take it anymore, I quit!”. The employee storms out of the workplace. As their blood goes from boil to simmer, in hindsight, the employee reflects on their actions and can’t believe they quit. Their job is necessary to support their family. They realize daytime TV is awful, and their significant others have found a whole host of projects for them to take on.
Returning to work the following day, they apologize for their outburst and tell their manager they didn’t mean to quit, acted rashly and want to get back to work. They state they were frustrated due to personal issues, which left them short-tempered and thus thinking unclearly. The manager at this point is confused as to what to do, and actually relieved to see this employee exit on their own terms.
What happens now?
Is it still a quit? Is it a discharge?
How will it impact unemployment?
Can the company say, “We already accepted your resignation”?
For unemployment purposes, most states recognize a “cooling-off” period and focus on the individual’s state of mind at the time. If in the heat of an exchange, as a reaction to something in the workplace (or outside) an employee quits and subsequently “cools off”, indicating they didn’t mean to quit, most states expect employers to rescind the hasty resignation. Particularly, where the employee attempts to rescind in short order. If an employer decides not to do so, it will be considered a discharge. The question then becomes why would you not allow the employee to return to work, if you had no plans to separate them? There is no specific length of time limiting the cool down period, but usually the more time that goes by the less likely an employer will be required to accept the claimant’s request.
Obtaining detailed written documentation of the event, like witness statements, will help tremendously. Even though the employer may be required to recognize an employee’s request to preserve their job, employers may still decide to discharge the employee for their actions (i.e. abandoning the shift, using profanity, insubordination, etc.). Once again, that old “state of mind” will still factor into the state’s decision, as they determine if those actions are deliberate, willful or intentional.
We are continually amazed by all the twists, turns and monkey wrenches thrown into what look like clear separations. As always, your best practices will strengthen any separation particularly when you strive to apply them uniformly. Where “good cause” reasons exist to rescind a hasty resignation, with an otherwise quality employee, doing so can be prudent. After all, the best way to avoid a risky unemployment claim is doing everything you can to make sure it’s never filed.