Voluntary Quit VQ 135
Voluntary Leaving or Discharge
This section discusses the general principles involved in determining whether a given separation is a voluntary leaving or a discharge. Eligibility factors, such as whether the claimant had good cause for quitting or was discharged for misconduct, are given secondary consideration. The appropriate category to consult in determining the claimant's eligibility will depend upon the reasons why the claimant voluntarily quit or was discharged.
A. Leaving Prior to Effective Time
Frequently after notice of a quit, layoff, or discharge has been given, either the claimant or the employer will act to accelerate the separation. Such action can alter the character of the separation.
Title 22, Section 1256-1(d) provides:
In the following situations the employee is the moving party in terminating the employment and thus the employee has voluntarily left his or her employment:
(4) The employee leaves work prior to the effective date of a discharge and is not paid beyond the last day actually worked. However, if the employee leaves work on the effective date of discharge but prior to the end of the normal workday, there is a discharge rather than a voluntary leaving, even if the employee is paid for that day's work . . . .
- Leaving Dependent Upon Option or Contingency
Sometimes an employer may notify the claimant that he or she will be discharged or laid off on a certain date, but gives the individual the option of staying until that date or leaving at once. Normally the claimant would not become the moving party to the separation by accepting the option to leave immediately.
For example, in P-B-166, the claimant's employer notified her on July 29 that she was to be discharged because of unsatisfactory work. The employer gave her the option of leaving at once or staying until July 31, the end of the pay period. The claimant left immediately and was paid only for the time worked. In holding that the claimant's acceptance of the option to accelerate the termination date did not convert the separation to a voluntary quit, the Board said:
We conclude in the present case that, where the employer discharged the claimant with an option to accept the discharge as effective at once or to accept the discharge as effective in a day or so, by accepting the option to have the discharge effective at once, the claimant did not become the moving party in terminating the employment relationship.
While the limited option in this case involved only two additional working days, since the Board did not specifically define the length of "a day or so," presumably a somewhat longer period could be involved without disturbing the Board's rationale.
In other cases, a claimant may give notice of resignation which is contingent upon factors within the employer's control, such as hiring a replacement. The employer does not become the moving party by securing a replacement. The separation is still a voluntary quit.
In P-B-102, the claimant submitted her resignation to be effective when a replacement was obtained. She was later absent on three successive days, but telephoned the employer on the third day, June 26, to advise she would return to work the following day. The claimant was told, however, that she need not return as the employer would handle her work. A replacement was hired and began work on July 2. The Board held that the claimant's replacement occurred on June 26 when the employer decided to absorb the claimant's duties and that the claimant voluntarily left work on that date.
- Separation Prior to Effective Date
When no option for early leaving is offered and a claimant leaves work without permission prior to the effective date previously scheduled for discharge or layoff, the separation is a voluntary quit.
In P-B-37, the employer informed the claimant on February 15 that his services would no longer be needed after February 29. The claimant continued in employment through February 26 but informed the employer that he was leaving work on that date to attend to personal business out of state. The Board concluded that the claimant became the moving party to the termination and had voluntarily left work.
Where the leaving occurs no more than one day early and with the employer's permission, the leaving remains a discharge. Since the employer could deny the permission to leave early, the requested time off has no more effect on the termination than time off on any other day of employment.
When the employer separates a claimant prior to the effective date of a previously announced voluntary leaving, the separation becomes a discharge if the claimant suffers a wage loss.
In P-B-39, the claimant gave notice on October 24 that she was quitting effective November 15. The employer permitted her to work only until October 31. The Board held that the claimant was discharged and said:
. . . the claimant was not permitted to work to the effective date of her resignation and the employer did not pay the claimant her wages through that date. The claimant did suffer a wage loss by the action of the employer in accelerating the last day of work.
On the other hand, if the employer continues paying the claimant's wages through the announced leaving date, the separation remains a voluntary quit. For example, in P-B-27 the claimant notified the employer on December 21 that she was quitting at month's end. The employer separated the claimant on December 26 but paid her wages through the end of the month. In holding that the claimant voluntarily quit, the Board said:
Although the claimant stopped working prior to the effective date of her resignation, the employer continued her wages through that date. The claimant was paid wages for not working and suffered no loss by the action of the employer in accelerating the last day to work . . . .
- Early Leaving on Effective Date
An early leaving on the effective day of a previously scheduled termination does not change the character of the separation. For example, in P-B-164, the claimant was informed at the beginning of the shift that he was to be laid off at the end of the shift. With three hours of work remaining, he failed to return to work after lunch. He was not paid for the three hours he did not work. In holding that the early leaving did not alter the fact that the claimant was laid off due to lack of work, the Board stated:
The question posed is whether the leaving of work three hours prior to the end of the shift was an effective intervening cause sufficient to alter the character of the termination. We believe the answer must be in the negative.
Where the leaving occurs on the effective day of the termination by the employer, it does not constitute an intervening cause or reason for the claimant's unemployment.
The Board further held that the same reasoning is applicable where the employer separates a claimant prior to the end of the shift but on the effective day of a previously announced resignation. Such leaving remains a voluntary quit.
- Separation Delayed at Employer's Request
A claimant who has submitted a resignation may be asked by the employer to remain at work a short time after the effective date of the resignation to train a replacement or to complete some urgently needed work. Extending the effective date does not change the fact that the claimant resigned.
B. Withdrawal of Resignation
Title 22, Section 1256-1(d) provides:
In the following situations the employee is the moving party in terminating the employment and thus the employee has voluntarily left his or her employment:
(3) The employee resigns effective as of a future date, the employer accepts the resignation and makes a firm offer to a potential replacement or incurs substantial expenses in recruiting or other efforts to obtain a replacement, and the employee subsequently unsuccessfully attempts to withdraw the resignation prior to its effective date.
In P-B-382, the claimant gave notice on June 8 that her last day would be June 24. She changed her mind and told her supervisor on June 22 that she had decided not to leave. The employer rejected her withdrawal of resignation and her employment terminated on June 24. According to the supervisor, if the claimant had asked to withdraw the resignation within a day or two, her request would have been looked on favorably. But he felt she had waited too long, and during the period he had done extensive interviewing of applicants for her position. By the time the claimant withdrew her resignation, he was preparing to select one of the applicants. In discussing "notice" cases, the Board stated:
A clear and unequivocal resignation causes the employee to become the moving party to the separation. The employer has the right to accept such resignation at face value and take the normal actions to replace the resigning worker. In this case, the employer did just that. A number of applicants were interviewed, and a replacement was about to be selected, when the claimant announced she had changed her mind and wanted to stay. The employer is under no obligation to accept the proffered withdrawal of the resignation. The unilateral action of the claimant in attempting to rescind her resignation does not make the employer the moving party to the separation and does not convert a voluntary leaving into a discharge.
When an individual submits a resignation and a change in the circumstances which motivated the leaving occurs, failure to attempt to withdraw the resignation will negate otherwise good cause under Section 1256. An exception would be when the facts show that an effort to withdraw the resignation would have been a futile gesture.
In P-B-123, the claimant had given notice of his intended resignation to accept substantially better employment. Prior to the effective date of the resignation, he learned the prospective job would not be available. He then mentioned to his employer that he might possibly like to remain employed and not take the new job. He did not reveal that the new employment was no longer available. Had he done so, the claimant's employer would have retained him. In holding the claimant ineligible for benefits, the Board stated:
In the present case, at the time the claimant submitted his resignation, he had been hired to commence a new job at a substantially higher hourly wage with better opportunities for the type of work he wished to do. Therefore, the claimant acted reasonably in submitting his resignation to terminate his employment. However, the fact that a person may set a date for resigning from employment is not the controlling factor. The most pertinent consideration is whether the claimant could have remained working for an employer on the actual date he left.
. . . [T]he claimant knew he would be without employment after
June 3. . . . At that time he should have informed his supervisor that the other job did not materialize and attempted to withdraw his resignation. Had he done so the employer would have retained him. Although the claimant believed he would be able to find other work which he would prefer, there was no reason why he could not have remained with the employer while attempting to find such work . . . .
C. Quit in Anticipation of Discharge
Title 22, Section 1256-1(d) provides:
In the following situations the employee is the moving party in terminating the employment and thus the employee has voluntarily left his or her employment.
(1) The employee resigns in anticipation of a discharge or layoff and before the employer takes any action.
In P-B-228, the claimant quit her job, citing "personal reasons" as her reason for quitting. Later she stated that she was forced to resign as the only alternative to being fired for unsatisfactory work. The agency for whom she worked stated that, had she not resigned, a letter of warning would have been issued and steps taken to remove her from her job. In its decision, the Board stated:
Since the evidence in the present case supports the conclusion that the claimant voluntarily submitted her resignation prior to affirmative action by the employer, we hold that she voluntarily left her employment without good cause.
Once the employer has taken affirmative steps to terminate the claimant, a resultant quit by the claimant would be a quit in lieu of discharge.
D. Quit in Lieu of Discharge
Title 22, Section 1256-1(d), provides:
An employee who leaves work when asked by the employer to either resign or be fired, or an employee who resigns rather than agree to a forced leave of absence, has not left work of his or her own free will. In these situations, since the employee did not choose to quit, the employer is the moving party in the separation and the employee becomes involuntarily unemployed.
When an employer allows a claimant to resign rather than be discharged, the option is usually given because the employer does not desire to affect the claimant's future employment possibilities with other employers by reporting his termination as a discharge. All such "resignations" will be characterized by the fact that the claimant had no choice relative to remaining employed. If he didn't resign, the employer would have discharged him. In such cases, the claimant's leaving is involuntary and will be treated as a discharge.
In P-B-218, the claimant was accused of using abusive language to a co-worker. The claimant was given the option of resigning his position or being discharged. The claimant chose to resign. In holding the separation a discharge, the Board stated:
. . . [T]he claimant's forced resignation was in no sense voluntary. If he had not resigned, he would have been discharged. Having no real voluntary choice in the matter of continuing his employment, we hold that he was discharged by his employer. . . .
E. Employment Status During a Layoff
- Layoff for an Indefinite Period
A layoff for lack of work for an indefinite period of time severs the employment relationship. Title 22, Section 1256-1(e) (2), provides:
A layoff for an indefinite period, or for an unreasonable length of time, or where there is no contemplation that the employee will resume his or her work in the future may sever the employer-employee relationship. In such cases there can be no leaving after the date of such a layoff.
In P-B-373, the claimant was an on-call nurse's aide, filling in for absent employees; when they returned to work, she was laid off. While on layoff, she filed a claim for benefits. The employer contended that the claimant should not be eligible for benefits because she had accepted the employment with full knowledge of its intermittent character. In holding the claimant eligible under Section 1256, the Board stated:
Here the employer gave notice to the claimant that she was being laid off with no definite date as to when she would be recalled to work. The action of the employer clearly terminated the employer-employee relationship because of the inability of the employer to extend further work to the claimant. The claimant neither voluntarily quit nor was she discharged for misconduct. Accordingly, the termination was under nondisqualifying circumstances.
- Layoff for a Definite Period
Title 22, Section 1256-1(c) (3), provides:
. . . A temporary layoff, due to a lack of work, for a reasonably definite period of time does not sever the employment relationship and if the employee terminates the employment relationship during such temporary layoff, the leaving is a voluntary leaving.
Title 22, Section 1256-1(e) (2), provides:
Although an employee neither performs services nor receives wages during . . . a temporary layoff due to lack of work, the employment relationship continues because the work will resume at a later date, and there has been no termination of employment
There is no severance of the employment relationship if the employer gives the claimant a definite date of recall at the time of the layoff. Since the employer-employee relationship continues, a separation issue will arise if the employee decides to quit or the employer decides to discharge the employee during the definite layoff period.
F. Mutual Agreement or Mutual Misunderstanding
Employment may also be terminated by mutual agreement between the employer and the claimant. Title 22, Section 1256-1(e) (4), provides:
There may be a separation by mutual agreement if the employer and employee have mutually agreed to separate, either at the time of termination or, initially, at the time of hire. In such cases the termination is neither a discharge nor a leaving and thus a disqualification cannot arise under Section 1256 of the Code. The expiration of a fixed term contract of hire to which the parties initially agreed is an example of a termination by mutual agreement.
In cases in which both parties have decided that "it isn't working out," the separation is not disqualifying. The decision must be bilateral. Therefore, if only one party has decided the employment is not working out, there is a separation issue which must be resolved.
In P-B-253, the claimant's attendance became irregular because of poor health. Her union contract provided for a leave of absence for a maximum of two years.
The claimant was carried on the employer's "absent-sick service payroll" from January to March. In March the claimant contacted her supervisor, saying she was still ill and didn't know when she would be able to return. During the course of the interview, she and the employer agreed that the claimant's separation "might be the best thing to do." Neither suggested the leave continue. In its decision, the Board said:
. . . [T]he evidence before us justifies a conclusion that the conversation . . . resulted in a mutual agreement between the claimant and her employer that under the circumstances no useful purpose would be served by the indefinite extension of her then existing leave of absence. Under these facts, we hold that the claimant's abandonment of the employer-employee relationship . . . was with good cause . . . .
Some separations appear insolvable from the standpoint of a misunderstanding between the claimant and the employer, in which each thinks the other has been the moving party in the separation. In cases such as the following, the Board has considered the separation to be neither a quit nor a discharge.
In P-B-458, the claimant had been counseled concerning his job performance some five weeks prior to the separation. On the last day of his employment, he was called to a meeting with the president and general manager. At the meeting, the claimant remarked that if he were in charge he would place the blame for slow business upon himself. The president felt the claimant had not been working to capacity, and the claimant specifically recalled that the president told him they "should part company." Shortly after that, the claimant announced that he would be leaving. The claimant cleaned out his desk and left. The employer interpreted the conversation and events as a resignation, while the claimant felt he had been discharged. In its decision, the Board stated:
The record does not sufficiently reflect that either the claimant or the employer was the moving party. We hold that where the claimant and the employer are mutually but reasonable mistaken about the other party's understanding of the separation, the claimant is not subject to disqualification under Section 1256 of the Code.
The Board went on to say that this analysis would not apply to situations where either party has an unreasonable belief in the other's understanding, or where the parties engage in collusive behavior in order to achieve an artificial result.
G. Constructive Quit
A claimant is said to have constructively quit his or her job when, although discharged by the employer, the claimant set in motion the chain of events which resulted in the employer's having no reasonable alternative except to terminate him.
It should be noted that, while the department designates the leaving of work as a constructive quit, as far as the claimant or employer is concerned the claimant was discharged. Therefore, when preparing a claimant or employer notice, the MC BDG Reasons for Decision are used.
Title 22, Section 1256-1(f), states in part:
In some cases, the employee is deemed to have left work voluntarily even though the apparent cause of termination is the employee's discharge by the employer. Such a leaving is designated as a constructive voluntary leaving and it occurs when an employee becomes the moving party by engaging in a voluntary act or in a course of conduct which leaves the employer no reasonable alternative but to discharge the employee and which the employee knew or reasonably should have known would result in his or her unemployment . . . .
In P-B-288, the claimant, a truck driver, lost his drivers license for one year for driving his own vehicle while intoxicated. The employer had no other job in his establishment where he could utilize the claimant's services and, since he was not licensed, the claimant could not drive a truck for the employer. In holding the claimant ineligible under the voluntary quit provisions, the Board stated:
Generally speaking, as between the claimant and employer herein there existed a contract for hire, by the terms of which the latter agreed to furnish a truck for the claimant to operate and work for him to perform with compensation therefor. In turn, the claimant agreed to furnish his skill as a truck driver, his services, and his authority from the State of California to operate a truck. During the term of the contract, a circumstance occurred which brought the contract to an end because the claimant was no longer able to furnish one of the essentials of the contract, namely, his authority from the State to operate the truck furnished to him. It must be recognized that this event in no way identifies the employer as the moving party in the severance of the employer-employee relationship . . . . It was the claimant who set in motion the series of events which placed his license and his position in jeopardy. His drunkenness led to his arrest, the arrest led to his conviction, the conviction led to the suspension of his license; and the latter fact prevented his continued employment.
In [a non precedent decision], the employer was forced to discharge the claimant because he refused to join a bona fide labor organization. When the claimant was hired, he was informed that he must join the union within 31 days. The claimant refused to do so, and at the end of the 31 days, he was discharged. The Board stated:
We have consistently held that an individual voluntarily leaves his work if he refuses to join a bona fide labor organization at his place of employment with the result that the employer is compelled to take steps to terminate his services.
Since the claimant brought about his own discharge by refusing to join the union, this was a constructive voluntary quit rather than a discharge.
These dissimilar cases have three elements in common:
- The claimant voluntarily committed an act or engaged in a course of conduct which;
- Left the employer no reasonable alternative but to discharge the claimant and;
- The claimant knew, or reasonably should have known, the act would jeopardize his/her job and possibly result in the loss of employment.
NOTE: If the claimant's termination was a result of incarceration, refer to VQ 360.
H. Substitutionary Layoffs and Bumping Privileges
A substitutionary layoff occurs when an individual elects to be laid off in place of an employee with less seniority pursuant to a provision in a collective bargaining agreement that provides that an employee with more seniority may elect to be laid off in place of an employee with less seniority when the employer has decided to lay off employees.
In Stanford v. California Unemployment Insurance Appeals Board, a 1983 appellate court case, the claimant, who was in no danger of layoff by virtue of his high seniority, elected layoff under terms of the collective bargaining agreement. The claimant, who was sixty years of age and a widower, chose to elect layoff in place of a younger man with a family to support under the following section of his union contract:
In the event of a layoff in an affected employee's seniority plan affecting those employees with two (2) or more years of continuous service, a more senior employee may elect layoff out of seniority to the extent of displacing a more junior employee.
The Court held that the instigating cause of the claimant's termination of employment was the employer's announced mandatory layoff. The claimant exercised his rights to a substitutionary layoff (i.e., a layoff in place of another employee) under his collective bargaining agreement only after the mandatory layoff had been announced. The Court stated:
While it is true that the collective bargaining agreement does not control the determination of eligibility for benefits, the terms of the bargaining agreement . . . are a part of the factual matrix at the time of separation . . . . The employee's choice under the plan at issue here arises only after the employer has mandated a certain number of employees will be laid off . . . the Board must give effect to the provisions of the collective bargaining agreement; so long as there is a legitimate layoff, it is not the Board's concern how the Union and the employer agree the layoffs are to be allocated.
Based on this reasoning:
- If the employer's implementation of the mandatory layoff was the moving or underlying cause of the separation, and
- If the collective bargaining agreement provides that a worker may elect to lay off himself or herself in place of another employee, then
- The claimant's deliberate decision to elect layoff will be a leaving with good cause under Section 1256.
In the following example, the claimant is not afforded the protection of the Stanford rationale since his contract does not provide for substitutionary layoffs. His leaving is treated as we would treat any other voluntary quit, on the relative merits of the circumstances surrounding his separation.
The claimant, a construction worker, has high seniority and the employer has announced that the two-year job is coming to an end; the employer can use only two men for the next three weeks. The claimant is afforded every indication that he will be one of the men kept on after the general layoff. His union contract specifies that the last one hired is the first to go. The claimant is sixty, the weather is cold, and he has a chance to take a vacation out-of-state with his wife before snows prevent their trip. He volunteers to be laid off. The next senior employee is called to perform the work until final completion of the job. The claimant's leaving is voluntary; since there is no compelling reason for his leaving at this time, his leaving is without good cause.
A collective bargaining agreement may provide that a senior employee who is scheduled to be laid off may elect to "bump" an employee with the same employer who is not scheduled to be laid off. Under such an agreement, a senior employee who fails to exercise his or her "bumping" privilege would be considered to have quit his or her job.
In P-B-75, the claimants, who were "permanent bottlers," had the right to bump temporary "extra bottlers" at other companies covered by the same collective bargaining agreement. The Board held that their refusals precluded suitable work under Section 1257(b). A claimant's election to layoff (or not to bump) must be with the same employer to be considered a voluntary leaving.
While the decision in P-B-75 was made under Suitable Work criteria, had the claimants failed to exercise their bumping privileges in their own plants, a voluntary quit issue would have been raised which would have resulted in disqualification in the absence of other good cause.
I. Ownership of Business Changes
When ownership of a business changes, a claimant's refusal of an advance offer to remain with the successor employer raises no separation issue. The employment relationship with the former owner ends in a layoff, and there is a suitable work issue under Section 1257(b) with respect to refusal of the new owner's offer.
In P-B-264, the manufacturing company for which the claimant had been employed went out of business. The employer notified its employees that they were terminated, but those who wished to work for the corporation which had purchased the business should submit employment applications. The claimant refused an offer made by the new company because the company was unwilling to pay the transportation allowance which he had received from the former employer. In its decision the Board stated:
The verbal contract of employment that the claimant entered into with the Newhard Die and Manufacturing Company terminated on April 30 . . . when the employer ceased business and the claimant was, in effect, laid off. Accordingly, the claimant is not subject to disqualification under Section 1256 . . . . The offer of employment made to the claimant by the successor company was an offer of a new contract of employment. Since the claimant refused to accept this offer, a question of eligibility for benefits is raised under Section 1257(b).
J. Sale of Stock
The act of a stockholder in selling his stock or ownership, which results in his unemployment, amounts to a voluntary termination of that employment.
A husband and wife together owned 100 percent of the stock of a corporation and, as employees, jointly operated a liquor store. Another party became interested in purchasing the store. After negotiation, the husband and wife decided to sell the store, and as a consequence of the sale became unemployed. Since the termination of employment resulted from the sale of stock, the leaving was voluntary. The reason for the sale was because the price was satisfactory to them and they considered it was an opportune time to sell. The claimants left their employment voluntarily without good cause.
If the claimants had a real, substantial and compelling reason for having sold the stock, such as illness or other reasons that constitute good cause, their leaving could have been with good cause.
K. End of Contract
A contract is generally negotiated for employment which is to start and end at given dates, and a termination at the end of the contract period is by mutual agreement of both parties. When the claimant has completed the specific term of employment contained in a contract of hire, regardless of its length, the contract expires. Refusal of an offer to renew the contract or accept a new offer prior to, or after, its expiration does not raise a separation issue, but does raise a job refusal issue.
In P-B-275, the claimant entered into a contract for a two-year period for work as an administrative accountant in Saudi Arabia. Approximately two weeks prior to the expiration of the contract, the employer offered a second contract for an additional two years. The claimant refused the offer of the new contract. In its decision, the Board stated:
The termination of an employment relationship in keeping with a specific contract of employment, whether written or oral, is a termination mutually acceptable and binding upon the employer and the employee. While it may be that a new contract which is equally mutually acceptable to the parties could renew the employment relationship, neither party is legally obligated to offer or accept such contract.
See PR 15 for a complete discussion of "contract" employment.