Voluntary Quit VQ 360
This section discusses eligibility principles considered when the leaving of work is for personal affairs. An exhaustive listing of all types of personal affairs which may cause an individual to leave work is not feasible. However, the principles discussed should apply to most quits because of personal affairs.
Incarceration is defined as confinement in a jail or penitentiary under due legal process or by competent (i.e., authorized) legal authority. Incarceration may also include the time for which a claimant is detained (but not arrested) and is to all intents and purposes unable to leave, for instance, the police station; the period in which the claimant is being held on a warrant of arrest but has not yet entered his/her plea; or the period of actual confinement after sentencing. Since the claimant's job could conceivably be lost during the period he or she was detained, arrested, and formally arraigned, the interviewer must also consider these periods as periods of incarceration, as well as any time he or she receives in the sentencing aspect of the crime.
Calif. Unemp. Ins. Code Section 1256.1, provides:
(a) If the employment of an individual is terminated due to his absence from work for a period in excess of 24 hours because of his incarceration and he is convicted of the offense for which he was incarcerated or of any lesser included offense, he shall be deemed to have left his work voluntarily without good cause for the purposes of Section 1256. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, is deemed to be a conviction within the meaning of this section irrespective of whether an order granting probation or other order is made suspending the imposition of the sentence or whether sentence is imposed but execution thereof is suspended.
P-B-289 addressed the concept of incarceration as a voluntary quit by stating, of the claimant involved in a domestic dispute ending with an arrest for assault and who was incarcerated for a week and missed his ship:
Generally speaking, the contract of hire was brought to an end because the claimant was not able to continue furnishing his services to the employer . . . . [I]t must be recognized that the nature of this circumstance in no way identifies the employer as the moving party in the severance of the employer-employee relationship. It then follows that the relationship was terminated either by the claimant or by circumstances over which neither the employer nor the claimant had any control. Although in a sense it might be said that the claimant did not leave his position voluntarily because an individual, in practically every case, is incarcerated unwillingly, such a narrow view would ignore the obvious fact that it was the claimant who first set in motion the chain of circumstances which ultimately jeopardized his position. His conduct led to his arrest, the arrest to his incarceration and later his trial and conviction. In the final analysis it was his voluntary and illegal action which prevented his continued employment.
The same conclusion was reached in Sherman/Bertram, Inc. v. California Department of Employment, a 1962 appellate court case, where the claimant was involved in a hit-run accident and was sentenced to jail for 30 days. The claimant's wife immediately notified the employer and requested that the job be held open. The claimant was a paint finisher, and the only person other than his supervisor who could perform the duties of his job. The employer agreed to hold the job open unless the work fell too far behind, in which case the claimant would have to be replaced. After two weeks, the employer was forced to hire a replacement. In its decision denying benefits, the Court stated:
To say that claimant's wilful criminal act was not his fault and was not the cause of his unemployment is pure sophistry. To reward claimant in such circumstances by awarding him unemployment compensation is to reward him for idleness caused by his wilful violation of the law--and at the expense of his employer who had nothing whatever to do with it. . . . So, here, the claimant's loss of employment was the result of an act of volition on his part and tantamount to a voluntary leaving, and, as the (Superior) court found, "without good cause" . . . . We see no valid distinction in whether the incarceration was lengthy or for a relatively short time. The true principle is whether the claimant's loss of employment was attributable to an act of his own volition and thus tantamount to a voluntary leaving.
In this case, the claimant was absent from work for a four-week period. But under Section 1256.1 of the Code, a claimant is disqualified if the absence which results in his or her termination is for a period in excess of 24 hours.
The phrase, "period in excess of 24 hours," has been subject to differing interpretations. Finally, in 1985, the Board defined "24 hours" for UI purposes as the running of 24 clock hours (not working hours), starting with the beginning of the first shift missed.
In P-B-443, the claimant, a meat cutter, had worked for his employer for six years ending with his last full shift on January 17. He was arrested on January 18 and charged with a felony. He was unable to work as scheduled on January 19, 20, or 21 because of his incarceration. He was discharged by his employer on January 22. He pleaded nolo contendere and was convicted of a lesser included misdemeanor offense. In its decision the Board held:
We believe the Legislature meant 24 clock hours, not working hours. Thus, in the case before us, when the claimant failed to report for duty on January 19. . ., he started the statutory clock running, and when again on January 20 he failed to report for work at the appointed time, an absence from work of 24 hours had occurred. An instant in time later, he has been absent from work within the meaning of the statute for more than 24 hours. He thus became subject to the disqualifying provisions of code section 1256 . . . .
To view the matter in any other manner would be to construe the relevant portions of code section 1256.1 as effecting disqualification of individuals, dependent entirely upon the peculiarities of their working hours, rather than for the reason that their absence from work was occasioned by the commission of offenses resulting in incarceration and conviction.
- Absence Due to Incarceration - Claimant Guilty
If a claimant is discharged because of absence in excess of 24 clock hours due to incarceration, the separation is considered voluntary and without good cause under Section 1256.1 when:
- The claimant has been convicted of the offense for which incarcerated or any lesser included offense, or
- In the absence of a court or jury verdict, the claimant has entered a plea of guilty or a plea of nolo contendere ("no contest").
In P-B-45, the claimant finished his shift early on Saturday, February 1, because he did not feel well. Later the same day, the claimant was arrested and incarcerated for gambling. He was released from custody on Tuesday, February 4, telephoned his employer, and explained the reason for his absences. He also explained that he would not be able to report to work on February 5 because he had to appear in court to answer the charges which resulted in his incarceration. When the claimant appeared in court, he entered a plea of guilty to the charges, was fined and released. He reported to work on February 6 and was discharged. The Board stated:
In this case the claimant was absent in excess of three days because of his incarceration, and he was convicted of the offense for which he was incarcerated. He therefore falls squarely within the provisions of section 1256.1 of the Unemployment Insurance Code, and it must be concluded that he voluntarily left his work without good cause. . . .
In the foregoing case, the claimant committed the act for which he was incarcerated while in the employ of the employer. However, Section 1256.1 would still apply even if the act were committed prior to the current employment. In a (nonprecedent benefit) decision the Board stated, "It is immaterial that the illegal act was committed long prior to his current employment. When committed, it was done willfully and the claimant voluntarily embarked upon a course of action, the very nature of which the claimant knew, or must be conclusively presumed to have known, would result in his arrest and incarceration and, if then employed, his consequent unemployment . . . ."
If, however, the claimant's incarceration was for one crime, but the conviction was for another unrelated crime (e.g., incarcerated following arrest for shoplifting and while incarcerated, convicted of a prior charge for assault with a deadly weapon), there is no relationship between the incarceration and the conviction to support a denial of benefits, as the claimant must be convicted of the offense for which he or she was incarcerated.
- The claimant has been convicted of the offense for which incarcerated or any lesser included offense, or
- Absence Due to Incarceration - Claimant Not Guilty
The provisions of Section 1256.1(a) apply only to cases where the claimant is convicted of the offense. In situations where the claimant is discharged for absence due to incarceration and is not convicted of the offense, the provisions of Section 1256.1 do not apply. The claimant's eligibility would be determined on the basis of the discharge. Refer to MC BDG, Section 15.
- Absence Due to Incarceration - Disposition of Case Pending
If a conviction has not occurred at the time the claimant is being interviewed, and the claimant was discharged because of absence from work in excess of 24 hours due to incarceration, and no appeal has been filed, the claimant would be determined to have been discharged for nondisqualifying reasons (because the claimant has not been found guilty of the charges for which he or she was arrested. The claimant may have been arrested erroneously.) The claimant is offered the option of receiving benefits pending court disposition of the case. If the disposition of the case is received within the benefit year or extended duration period, the decision can be reconsidered. See Determinations FOM for procedure.
- Disposition of Court Case Received After Determination Issued
Unemp. Ins. Code Section 1256.1(b), provides:
Notwithsatnding any other provision of this division, any determination made prior to a conviction or other final disposition of the criminal complaint or accusation by the court as to whether an individual who is terminated due to his absence from work because of incarceration voluntarily leaves without good cause, may, if no appeal has been taken from the determination, for good cause be reconsidered by the department during the benefit year of extended duration period to which the determination relates. Notice of any reconsidered determination shall be given to the claimant and any employer or employing unit which received notice under Section 1328 or 1331, and the claimant or employer may appeal therefrom in the manner prescribed in Section 1328.
Once an appeal has been filed on a "disposition pending" case, jurisdiction over the issue(s) transfers to the Appeals Board and a reconsideration cannot be done.
If an appeal has not been filed, the determination previously issued on a "disposition pending" case is reconsidered immediately upon verification of the disposition of the case. If the court decision is "guilty," the claimant would be redetermined ineligible under the provisions of Section 1256.1 as a voluntary quit without good cause (See number 1 above.). If the court decision is "not guilty," the claimant's eligibility would be based on the reason for the discharge using regular Section 1256 criteria (See number 2 above.). If an overpayment results from the redetermination, refer to Overpayment FOM for procedures.
- Incarceration in Lieu of Fine
Regardless of the length of the absence, Section 1256.1 is not applicable to those cases in which the confinement was but a substitute for a fine which could not be paid due to the claimant's indigence.
If the claimant cannot pay the fine and, instead, is ordered to serve the time in lieu of the fine, the claimant's incarceration is not for the offense of which he or she was convicted, but for inability to pay the fine. Incarceration for inability to pay the fine is not disqualifying for UI purposes.
Title 22, Section 1256-31, "Comments," provides:
The basis for disqualification under Section 1256 of the code requires a distinction between voluntary leaving of work and a discharge. An individual who voluntarily commits and is convicted of a crime for which a fine is imposed but who is indigent and unable to pay the fine and is thereupon incarcerated in essence loses his or her job when discharged for absence due to incarceration because of indigency and not due to the voluntary criminal act. The act is voluntary, but the failure to pay is involuntary. But for the individual's involuntary indigency, there would have been no incarceration and no absence from work despite the commission of a crime.
In Kaylor v. Dept. of Human Resources, a 1973 appellate court case, the claimant was sentenced to pay a fine of $120 or spend seven days in jail. After trying unsuccessfully to obtain an advance on wages he had earned, the claimant notified his employer that he must spend seven days in jail. He was terminated during his absence. The court held that compelling an indigent person to serve a sentence in lieu of a fine was in violation of the equal protection clause of the Fourteenth Amendment. The court further held that denial of UI Benefits under these circumstances is contrary to the policy expressed in Section 100 of the Code and said:
. . . a severe construction of Section 1256.1 would present the ludicrous proposition that a rich man could retain his job or his eligibility for unemployment compensation whereas the poor man not only loses his job, but he is denied unemployment benefits.
A different situation is presented when the claimant is capable of paying the fine but elects not to do so. That claimant has freely elected incarceration for the offense itself and is not incarcerated for inability to pay the fine. As long as the claimant has resources or collateral which can be used to raise funds to pay the fine, he or she is not indigent.
- Absence Due to Incarceration - Claimant Guilty
- Financial Difficulties
Title 22, Section 1256-18 (b), provides:
An individual who leaves work due to financial difficulties has left work without good cause unless there are compelling circumstances to establish that a reasonable person genuinely desirous of retaining employment would have left the work.
In P-B-274, the claimant resigned his employment in order to obtain money due him under the employer's annuity plan. The cost of medical care for an infectious skin disease had depleted his funds during a period when he was unemployed because of a trade dispute. He needed money immediately to continue the treatments. The Board, in ruling that he had compelling personal reason for leaving, said:
It appears that these funds could be made available to the claimant only upon termination of the employment relationship . . . . The claimant has testified that he had an immediate need for these funds because of the expensive medical treatments which he was undergoing. It is our opinion that the claimant was prompted to take this action for compelling reasons, not only because of the immediate necessity for funds which would not have otherwise been available to him, but also in view of the continuing nature of his disability.
The fact alone that a person had financial difficulties will not afford good cause for quitting employment. Even though the financial difficulties may have been aggravating and distressing to the claimant, they will not afford that degree of compulsion necessary to support a finding of good cause. Other factors must be present to support a finding of compelling circumstances.
- Legal and Business Affairs
Title 22, Section 1256-18 (c), provides:
An individual who leaves work to attend to legal or business affairs has left work without good cause unless there are compelling circumstances requiring the individual's personal attention and the affairs cannot be handled by obtaining a leave of absence.
In P-B-273, the claimant was an assistant cook on a ship which had been out to sea about three months in Alaska, was now being loaded in port in Longview, Washington, and was soon to leave from Washington for an "extended trip" to the East coast. The claimant went to his apartment in Portland and was served a subpoena in the matter of his divorce. His attorneys had secured one continuance for him but were unable to arrange another; if he failed to answer the subpoena, his property rights could have been affected. He returned to the ship and advised the captain that he was scheduled in court on March 28, after the ship was due to sail. Had the claimant not left his work, he could not have been present at the court proceedings. In its decision, the Board held:
[W]e find that the claimant left his work because of a pending court proceeding at which his presence was required to avoid serious jeopardy to his property rights. The proceedings had already been continued once because of the claimant's absence and no further continuance would be granted. The ship upon which the claimant was employed was scheduled for an extended trip . . . and, had the claimant not left his work, he could not have been present at the court proceedings. Under these circumstances, we find that the claimant had a real, substantial, and compelling reason to leave his work. . . .
Title 22, Section 1256-18(f), provides in part:
An individual who leaves work to enter self-employment ordinarily has left work without good cause but leaves work with good cause if the leaving is from temporary work or short-term work to end in the near future and the self-employment provides reasonable assurance that a livelihood will be obtained for a reasonable period of time.
A leaving of work to engage in self-employment was discussed in P-B-271, where the Board stated:
It is our view that the mere act of leaving "work" to enter into self-employment is not in and of itself a disqualifying action. We must consider all of the reasons for such leaving.
In this decision the claimant had an opportunity to engage in crop dusting in Alaska. He had heard that the boat works where he was employed was going to lay off workers. He consulted his supervisors and the personnel office and was advised he would be laid off in two weeks, and these officials recommended that he accept the crop dusting offer. He also consulted the business agent of his union and was advised that there were no immediate prospects of work. He then quit and was self-employed in crop dusting for several months. The decision continues:
The claimant herein was faced with the loss of his work . . . within a short time. He investigated and found that he could not hope to obtain new employment in the area within the foreseeable future. On the other hand, crop dusting offered him a certain livelihood for himself and his family for several months. In our opinion, the claimant had a compelling reason for his resignation and did what a reasonable man would do under similar circumstances.
In contrast, in P-B-270, the Board held the claimant left permanent work to enter into an uncertain venture. In this case, the claimant, a weather stripper, left his last employment to enter a partnership. The claimant and his partner operated a weather-stripping business for two months that ended because of a disagreement over finances. In appealing a denial of benefits, the claimant contended that he had good cause for leaving his former employer because he expected to do better financially in the partnership venture. In its decision, the Board stated:
When the claimant herein filed his initial claim for benefits, he was in the same position as an individual who had previously left employment and for one reason or another retired from the labor market for a period of time. The mere fact that the claimant chose to become an entrepreneur during the period subsequent to severing an employer-employee relationship does not act to remove that severance as the original event in the sequence of circumstances leading to the unemployment for which he is now claiming benefits . . . . In considering the claimant's reasons for quitting at that time, we have previously held the legislative declaration of public policy . . . requires that we find good cause for quitting work exists only in those cases where the reasons for quitting are of a compelling nature. We cannot find that element of compulsion in this case. Although a desire for advancement is commendable, nevertheless it does not, in our opinion, constitute good cause for leaving work.
Thus, compelling reason for leaving work is present only when the work which the claimant left is not permanent and the self-employment is not a speculative business enterprise that offers no assurance of providing a living for a reasonable period of time.
- Mandatory Retirement
Title 22, Section 1256-17(b) provides:
An individual who leaves work due to mandatory retirement provisions does so involuntarily and no issue arises of disqualification for voluntarily leaving the most recent work without good cause. Compulsory retirement of an individual is involuntary and does not raise an issue under Section 1256 of the Code regardless of whether the retirement is required under collective bargaining agreement provisions or a policy or practice of an employer in the absence of such an agreement.
Comments to Section 1256-17(b) cautions:
In general, mandatory retirement is no longer allowed, with certain exceptions (see Sections 20980 and 20980.5 Government Code, and 29 United States Code 623, 631).
Note: Government Code Section 20980 relates to patrol members, age 60; Section 20980.5 relates to state safety workers, age 65.
- Optional Retirement
Generally, a claimant who could have continued in employment but left voluntarily to retire from the labor market does not have compelling reason for quitting. Likewise, a claimant who leaves work voluntarily for the sole purpose of qualifying for or obtaining a pension or other monetary inducement will not have good cause for leaving.
Title 22, Section 1256-17(c) provides:
An individual who exercises an option for early retirement . . . ordinarily leaves the most recent work without good cause in the absence of other factors. If an employer offers employees . . . an increased pension or other monetary inducement, the individual who elects optional early retirement does not have good cause to leave work solely due to such monetary inducements. An early retirement by a worker under any pension system due to a desire to work under and establish pension rights in another pension system is a leaving of work without good cause in the absence of other factors. However, if additional factors influence an individual's decision to retire early, there may be good cause for leaving the work under subdivision (d) of this section.
Title 22, Section 1256-17(d) lists the "other factors" that should be considered in addition to monetary inducement to retire:
An individual whose decision to elect early retirement is substantially motivated by a factor other than monetary inducements may have good cause for leaving the work if a reasonable person genuinely desirous of retaining employment would have retired under the circumstances which motivate that individual to retire. Other factors which may motivate early retirement include, but are not limited to, the following:
- The individual's age.
- The individual's health . . . .
- Whether the individual's job will be abolished, and if so, the date the job will be abolished.
- The length of time between the retirement and the date of mandatory retirement or the abolition of the job, if applicable.
- The individual's wage at the time of early retirement . . . .
- The extent and degree of encouragement of early retirement given an individual by his or her supervisory personnel.
- Whether a transfer to other employment was offered by the employer.
- Whether a leave of absence was available to the individual, and if so, whether the leave would meet the individual's needs . . . .
- If the employment is federal employment, consideration is given to the findings of the federal agency. The fact that the individual leaves federal work due to a desire to work in private employment to establish wages for the purpose of federal social security benefits is not, taken alone, good cause for leaving work.
In P-B-97, the claimant was a federal government employee with 26 1/2 years service. At the time of his separation, he was 50 years of age and not eligible for regular retirement benefits. His military installation was facing reductions in force (RIFs); although the claimant would not have been affected, younger employees with shorter terms of service would have faced layoff. The commanding officer urged older employees, eligible for a "discontinued service annuity," to elect layoff; the separation would be considered involuntary. The claimant elected to take the discontinued service annuity and understood through the official publication of the base that he would be eligible for unemployment compensation because of the encouragement to retire given by management. The Navy Department responded to the initial claim by stating, "Resignation RIF situation, Reason: Involuntary separation - Resigned after official's request. No other job offered." The Department then sought clarifying information from the federal agency. The agency responded with additional finding as follows:
Mr. Hollis was advised of his retention rights and had the right to remain in his position. He would have been able to continue working indefinitely. He retired to lessen the impact of the RIF. He was not given the option of accepting another job since his job was not affected. Mr. Hollis meets the age and service requirements for discontinued service retirement. He was asked by the Naval Supply Center to resign in order to lighten the impact of a planned RIF. The Dept. of the Navy and the Civil Service Commission consider such a resignation to be an involuntary separation, and direct that it be recorded as "Resignation--Reduction-in-Force Situation, Involuntary Separation.
In reaching its conclusion that the claimant was not eligible for benefits, the Board stated:
The record is clear in showing that the claimant had the option to continue working indefinitely. Some employees were facing layoff. The federal agency in an effort to retain its younger employees, encouraged the claimant, and others, to accept the retirement annuity available to them in situations such as this. The claimant elected the retirement option. He therefore voluntarily left his work.
The claimant chose to accept a retirement annuity of around $200 rather than retain a job paying in excess of $650 a month. This is not the action of a reasonable person genuinely desirous of retaining employment. This is the action of a person who has a more paramount desire. Accordingly, while we recognize that such action is understandable, it is not done for a real, substantial and compelling reason, and we hold that a voluntary retirement to receive an annuity or a pension does not constitute good cause for leaving work under Section 1256 of the code.
A similar conclusion was reached in P-B-456. The claimant was employed as an industrial engineering analyst for five and one-half years. Due to business reverses, the employer had begun a reorganization of its workforce. Rather than terminating employees, the employer established an option program for its displaced workers. The claimant was notified that, since he was subject to redeployment, he could participate in the employer's program. Under Option One, the claimant could submit his resignation within seven days and receive the equivalent of eleven weeks' salary. Under Option Two, the claimant would be retained at his usual salary for four weeks, during which time the employer's personnel department would attempt to find work within the company for the claimant. If no position were found during the four-week period, the claimant could resign and receive one week's salary for every year of employment. Prior to making his decision, the employer informed the claimant and other employees that all 180 of the employees who had elected Option Two had been placed, however, there was no guarantee. The claimant elected Option One and submitted his resignation. In its decision, the Board stated:
Here, the employer offered to retain the claimant on its payroll for at least an additional four weeks. Even though there was no guarantee of permanent employment, work remained available to the claimant at his option at the time of leaving. Accordingly, the claimant was the moving party and was not laid off by the employer.
It has been suggested that this case involves a voluntary separation falling within the purview of Stanford v. California Unemployment Insurance Appeals Board . . . . In 1984 the Legislature in effect ratified the result in Stanford when it amended section 1256 to provide that a claimant is . . . deemed to have left his or her most recent work with good cause if he or she 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.
The case now before us is not covered by either the statute or the Stanford case. First, there was no layoff pursuant to a collective bargaining agreement, as required by the legislation. Second, there was no "seniority layoff" or "discretionary bump" provision in this employer's redeployment policy. Finally, this claimant was not volunteering to quit in place of other workers who had less seniority and were in line for a layoff. In fact, the evidence is to the contrary insofar as no one in the redeployment list had been laid off.
After having given due consideration to the circumstances existent at the time the claimant chose to quit his job, we conclude that a person genuinely desirous of retaining employment would not opt for immediate unemployment when continued employment for a four-week period was a certainty and there was reason to believe permanent employment was in the offing.
Occasionally a claimant will leave work because of social security earnings limitation. Regarding that situation, Title 22, Section 1256-17(c), provides:
If an individual who has retired and draws social security benefits returns to work in a job which the individual leaves voluntarily because the earnings from the job will exceed the earnings limitation under the social security law and affect social security retirement benefits, the leaving of work is without good cause.
- The individual's age.
- Mandatory Retirement
- Return to Former Home
Title 22, Section 1256-18(e), provides:
An individual who leaves work due to a desire to return to a former home has left work without good cause unless there are compelling circumstances to establish that a reasonable person genuinely desirous of retaining employment would have left the work.
In P-B-299, the claimant contended he quit to move to New York City to live with his mother who was ill. His family, consisting of father, brother, and sister, were all living at home and the claimant's presence was not needed to care for the mother. A second reason for going east was because the brother was to be drafted into the military four months later. In its decision, the Board stated:
In the instant case, the claimant was not removing himself from the labor market but was merely transferring from one labor market to another. He was not leaving his employment to remain at home but to seek employment in another area and in fact he did secure employment almost immediately upon arriving in New York. . . . In our opinion, the claimant did this because of a personal preference to return to his former home. Accordingly, the claimant . . . is subject to provisions of Section 1256 of the code. We have previously held that a leaving of work to return to a former residence and labor market is not with good cause within the meaning of Section 1256 of the code . . . .
- Rest or Vacation
Title 22, Section 1256-18(d), provides:
An individual who leaves work due to a desire to rest or take a vacation has left work without good cause unless the leaving is reasonably necessary for the protection of the individual's health and a leave of absence or transfer to other work was requested but denied or would not have been granted by the employer.
Thus, a quit for the sole purpose of taking a vacation or rest will be without good cause.