Sunday, May 2, 2010

UNEMPLOYMENT INSURANCE HEARINGS - VOLUNTARY SEPARATION

If you are unhappy with you job due to friction with other employees, quiting the job may lead to a denial of benefits. Here is the general case law from the Appeals Board:

Incompatibility with an employer ordinarily does not constitute good cause for a voluntary quit unless accompanied by factors such as resulting impairment of the claimant's health or impugnment by the employer of claimant's honesty and integrity. (A-750-1243; A.B. 39,427-53)

False accusations or constant insinuations made by the employer that claimant is dishonest may constitute good cause for voluntary leaving. (A.B. 13,297-46)

Constant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee's voluntary leaving of employment. (Ref. Dec. 51-325-52R; A-750-1138; similarly, A.B. 258,475A)

When working conditions become intolerable because of continuous friction with supervisor, good cause may exist for voluntary leaving. (A.B. 12,979-46)

Mere inability to get along with supervisor (clash of personalities) is not good cause for voluntary leaving. (A.B. 13.010-46)

Mere displeasure with a co-worker's attitude in the absence of evidence that health was being impaired is not sufficient of itself to constitute good cause for voluntary leaving. (A.B. 16,683-48)

Inability to get along with a fellow employee is not in itself good cause for leaving employment. (A.B. 7053-42)

Being harassed and annoyed by co-workers to such an extent that health is adversely affected may be good cause for voluntary leaving. (A.B. 8108-42)

A supervisor's continuing use of abusive profanity when reprimanding the claimant, despite complaints to the employer, provides good cause for voluntary leaving of employment. (A.B. 337,447; A-750-1941)

Disagreement with an employer's new and reasonable "no smoking" policy, which makes provision to accommodate "smokers" does not constitute good cause for leaving employment. (A.B. 388,255; A-750-1991)

Thus, one must establish, in effect, the existence of a "hostile environment", acts of discrimination, harassment, etc, and it is best to be specific, detailed and have back up of documents of all your claims, especially that it effected your health. Generally, I send Claimants a Questionnaire to help me evaluate the case:

First, I need some basic information:

1. Name of employer.

2. Nature of employer's business.

3. What date Claimant began employment.

4. How did Claimant obtain the employment.

5. What was Claimant employed as, viz job title.

6. What was Claimant's duties.

7. Was the job a union job.

8. Claimant's pay history.

9. The hours and days Claimant worked, viz., Claimant's regular schedule and actual schedule.

10. Whether Claimant received evaluations in writing or orally.

11. When was the last day of employment and what happened that day.

If Claimant received a Notice of Adverse Determination on the grounds of Voluntary Separation Without Good Cause, please be specific and in diary form with the following information:

1. Why did Claimant quit.

2. Describe the date, time, place, people present at the incidences that the Claimant feels gave them reason to quit.

3. Describe in detail each incident.

4. Describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.

5. Describe in detail what the Claimant feels the employer was doing that was in violation of any state or federal law.

6. Describe in detail any changes in the terms and conditions of the Claimant's employment such as pay, work hours, work days, change in location, change in duties, etc.

7. Describe in detail any health issues that led to the Claimant quitting with appropriate medical documentation and whether and when that information was transmitted to the employer and, of course, describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.

I usally ask that the incidents be written in diary form because:

1. It will help the Claimant's case that the Claimant was in a hostile work environment and had a compelling cause to quit if the Claimant can specify, as best the Claimant can, each incident.

2. A diary form will help the Claimant recall events - it is just a fact that writing down a diary jogs a witnesses testimony. Perhaps there was someone the Claimant spoke to about these incidents who can help the Claimant in recalling them.

3. A diary form will make it easier at the hearing to establish the Claimant's case. the information above is exactly what the judges ask for.

4. In Voluntary Separation cases, sometimes the DOL sends their own attorney who will also take the position that the Claimant is not entitled to benefits. My experience is that during their cross-examination, they try to catch the Claiamnt in inconsistent statements to discredit them. A diary helps the Claimant to be consistent.

Of course, the file must be reviewed before the hearing and it helps if the Claimant can obtain copies of all documents submitted by Claimant to the DOL and all documents the Employer submitted in opposition to the claim.

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