Wednesday, February 17, 2010

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

A lawyer at a Continuing Legal Education course that I took on UI cases once said "Do not rely on UI benefits as an income. If you are unhappy with your job, don't quit unless you have a new one." I have had several cases where claimants quit and these have been difficult cases. let us first examine the introductory statement on the issue from the Appeals Board website:

"The Unemployment Insurance Law requires that a claimant voluntarily separated from employment be disqualified if the separation is "without good cause" (sub. sec. 593.1(a)), or due to the claimant's "marriage" (sub. sec. 593.1 (b)). This applies to any voluntary separation after which claimant has not worked in subsequent employment and earned remuneration at least equal to five times the benefit rate. (See Field Memo 3-99 for detailed discussion of "controlling" employment.)

The term "voluntary separation" as used in the statute means leaving employment of one’s own free will. It includes resignations other than those submitted at the employers insistence, and failure to return to work following a temporary layoff or leave of absence. A claimant discharged because of volitional acts which leave the employer no choice but to terminate the employee, pursuant to law, governmental regulations or contract is also voluntarily separated from employment. (, 309 N.Y. 413; , 71 AD 2d 746)

Once it is established that a claimant's separation is voluntary, the local office must determine whether the circumstances of the separation were "without good cause." Section 593.1 (a) provides that "In addition to other circumstances that may be found to constitute good cause, voluntary separation from employment shall not be in itself disqualify a claimant if circumstances have developed in the course of such employment that would have justified the claimant in refusing such employment in the first instance ..." under the terms of sub. sec. 593.2...; or "if a claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan which permits waiver of his right to retain the employment when there is a temporary layoff because of lack of work, has elected to be separated for temporary period and the employer has consented thereto. "

Statutory good cause is also provided by sub. sec. 599.2 for claimants leaving employment which is not "suitable employment" to enter training approved under the Federal Trade Act of 1974. "Suitable employment" is defined as "work of a substantially equal or higher skill level than the claimant's past adversely affected employment and for which the remuneration is not less than eighty percent of the claimant’s average weekly wage." This exception does not apply to any other training program. In addition to the statutory reasons above, numerous other conditions may provide good cause for leaving employment. In general, to qualify for benefits a claimant who voluntarily leaves employment must have had a compelling reason for leaving and must have made a reasonably prudent attempt to resolve the problem and protect the employment.

When interviewing claimants regarding the issue of voluntary separation, claims personnel should consult the appropriate Fact Finding Guide cards for a checklist of questions to be explored. Determinations should be made in accordance with the principles reported in this section of the Interpretation Service Index, and the policies set forth in relevant Special Bulletins (A-710 series).

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