Wednesday, March 10, 2010

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

According to the Appeals Board website: "As a general principle, a claimant who quits in anticipation of discharge does so without good cause. An exception to this general rule was first enunciated by the Appellate Division in Matter of Grieco (41 AD. 2nd 799). The Court found that the claimant's leaving with the employer's acquiescence one day earlier than his scheduled date of discharge did not constitute a voluntary leaving, but rather an involuntary termination. Based on this case, and AB 391,146 cited by the Appeal Board, it is clear that the number of days should not be considered controlling. The essential, question is whether the employer's decision to discharge is definite and irrevocable (i.e. could any improvement in claimant's job performance between the date of notice and the intended date of discharge change the employer's decision). If so, and the employer consents to an earlier date, the separation is involuntary."

Thus, where a definite date of separation under non-disqualifying conditions has been set by the employer, a request by claimant to leave the job at an earlier date, when agreed to by the employer, did not. constitute a voluntary leaving without good cause. AB 405,053 where "Claimant worked as a bartender at a restaurant for about 11 months until August 30, 1990. He was informed on that day by the employer's president that he was being discharged because of unsatisfactory work performance and that his last day of work would be September 8, 1990. He finished his shift that evening, but felt uncomfortable about continuing to work for the next week. On the following night, he returned to work and asked the president if the president would agree to terminate him immediately because he felt uncomfortable. The president agreed and gave the claimant his last paycheck. OPINION: The record establishes that the claimant was discharged on August 30, 1990 because of unsatisfactory work performance, said discharge to take effect September 9, 1990. The employer consented to accelerate claimant's discharge to August 31, 1990 upon claimant's request. Under these circumstances, the Board concludes that there was no voluntary separation (see Appeal Board 393,146). The initial determination should be overruled."

But recently, I was consulted with a similar issue and the Claimant was able to successfully win the hearing without counsel. The administrative law judge stated in part:

"With the change in the nature of (claimant's work) permanent and with the employer telling (claimant) that (claimant) was not using the correct terminology, the claimant reasoned that (the claimant) could not perform the job to the employer's standards and accepted the separation package. The employer made it clear that it considered the claimant's job performance to be poor. The claimant reasonably concluded that (the claimant) would be terminated for poor performance in one month and that (the claimant's) performance would not improve in that month. The claimant had good cause to quit (the claimant's) job"

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