Voluntary Quit VQ 5
Elements of a Voluntary Quit
This section addresses general principles of voluntary quit determinations. To decide whether or not the quit is disqualifying, refer to the appropriate section reflecting the reason for separation given by the claimant.
Unemp. Ins. Code Section 1256 provides: "An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause. . . ."
Thus, the elements of a voluntary quit are, (1) leaving, (2) most recent work, (3) voluntarily, and (4) without good cause.
A. Leaving Work
The voluntary quit provisions of Section 1256 of the Unemp. Ins. Code apply when the claimant terminates his or her employment by leaving work. This differs from terminations in which the employer no longer offers employment to the claimant (discharge), or the work for which the claimant was hired has ended and the claimant is laid off due to lack of work (LOLW). A leaving of work occurs when the employment relationship is terminated. A leaving of work also occurs when the performance of services is suspended but the employment relationship is not terminated. For example, the employment relationship may be continued during a leave of absence or suspension although the claimant performs no services and receives no wages during that time. When a claim is filed during the leave or suspension a separation issue is raised under Section 1256 which must be resolved on the basis for the leave or suspension. (See VQ 285.)
B. Most Recent Work
Unemp. Ins. Code Section 1256.3 provides:
For the purposes of Sections 1256, 1256.1, and 1256.2, "most recent work" is that work in which a claimant last performed compensated services:
(a) Prior to and nearest the date of filing a valid new, reopened, or additional claim for unemployment compensation benefits, a valid primary, reopened, or additional claim for extended duration benefits, or a valid application, or reopened or additional claim for federal-state extended benefits.
(b) During the calendar week for which a continued claim is filed.
Not only must the work be "most recent" in terms of the filing of the claim, but the work must be "work" as defined by the code and regulations. A disqualification cannot result unless both conditions are present.
- "Most Recent" Defined
"Most recent" is determined in relation to the date of the claim filing or, in the language of the regulation, prior to and nearest the date of filing a valid new, reopened, or additional claim for benefits. The same principle applies to continued and partial claims, the "most recent" work is that work which was "most recent" at the time the claim was filed.
Title 22, California Code of Regulations, Section 1256-2(d), provides:
. . . . [F]iling generally refers to the day a claimant mails a continued claim, or other claim, or reports in person to a department field or branch office in order to commence the process of claiming benefits, except where the claimant fails to report for a later scheduled completion appointment . . . .
Section 1256-2(d) also distinguishes the "last work" at the time the claim is filed from subsequent employment, even if that employment is prior to the effective date of the claim. Reemployment immediately after filing a valid new claim is not the most recent work since most recent work does not include employment which occurs after the filing date of the new claim.
If a claimant holds two or more jobs simultaneously, the most recent work is the employer for whom the claimant last performed any compensated services prior to and nearest the actual filing date of the claim.
On Friday the claimant quit work for Employer A. On the following Monday the claimant worked for Employer B and was discharged on that day. On the following Tuesday he filed a claim for unemployment benefits. The claim is effective on the prior Sunday.
The most recent work is from Employer B on Monday, the last work performed prior to the filing date, even though the work was performed after the effective date of the claim.
The claimant quit work for Employer C on Thursday and filed a claim for unemployment benefits on Friday, the next day. The claimant worked for Employer D on the following Saturday. The claim is effective on the next Sunday.
The most recent work is the work for Employer C, the last employer prior to the filing date, not the work for Employer D on Saturday.
The claimant mailed a continued claim on Sunday, April 12, for the two weeks ending Saturday, April 11. During the second week he earned $40 on Tuesday, April 7, for Employer G and quit. He also earned $40 from Employer H on Thursday, April 9, and was laid off due to lack of work. He had no other work during that week.
The most recent work for the second week is for Employer H on Thursday, April 9, the last employer prior to filing the claim.
- "Work" Defined
Work has been defined in Title 22, Section 1256-2, as full-time, casual, part-time, permanent, or temporary service, performed for wages or remuneration, including call-in, show-up or standby pay and in-kind compensation, including, but not limited to, service by:
- An employee as defined in Section 621 of the Code.
- An employee under the usual common law or admiralty rules regardless of whether the services are in "employment" under the Code.
- A self-employed individual who has elected coverage under Section 708 of the Code.
- An individual in military service or federal civilian service.
- An individual who is a participant in an on-the-job training, work experience, or public service employment program.
- An individual in antipoverty programs based on wages for work such as the work study programs.
For purposes of Section 1256 of the Code, work does not include:
- Service performed during unpaid training periods provided by employers to job applicants who are hired only after successful completion of the training.
- Service performed as a self-employer or independent contractor who has not elected coverage under Section 708 of the Code.
- Service performed in training programs designed to prepare persons for future employment, such as Job Corps.
- Service performed in jury or witness duty.
C. Voluntary (Moving Party)
Before a leaving may be said to be "voluntary," the claimant must have been the "moving party," defined for our purposes as the person who places into motion the chain of events that is responsible for the termination of the employment relationship. Title 22 provides the employee is the moving party in terminating the employment and thus has voluntarily left his or her employment in the following situations:
- The employee leaves work at a time when work is available.
- The employee's voluntary act or conduct is not work-connected, but compels the employer to discharge the employee which the employee knew or reasonably should have known would result from his or her actions. (Constructive quit.)
- A leave of absence requested by the employee.
- The employee resigns in anticipation of a discharge or layoff and before the employer takes any action.
- The employee resigns but delays the effective date of the resignation at the request of the employer.
- 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.
- The employee leaves work prior to the effective date of a discharge and is not paid beyond the last day actually worked.
- The employee refuses to exercise his or her right to "bump" another employee and instead elects to be laid off.
The problem frequently arises where it is difficult to determine whether a claimant has voluntarily quit or has been discharged.
One Party Unwilling to Continue
When only one of the two parties is unwilling to continue the employer-employee relationship, it is obvious who is the moving party. If employment was still available to the claimant and the claimant refused to continue working, then the claimant is the moving party. If the employer will not allow the claimant to continue work, even though the claimant wants to, then the employer is the moving party.
Both Parties Unwilling to Continue
When both parties are unwilling to continue the employer-employee relationship, the one who moves to sever the relationship first is considered the moving party. Little if any consideration should be given to which party initiated the conversation; the decision should be concerned with which party actually, through words or actions, severed the employer-employee relationship.
When both parties have a reasonable but mistaken belief of the others understanding of the separation, the claimant is not subject to disqualification. While not common, this type of separation does occur. For reporting purposes, the separation will be considered as involuntary and for reasons other than misconduct. (See VQ 135.)
There may be a separation by mutual agreement if the employer and the employee have mutually agreed to separate, either at the time of the 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. An example of a termination by mutual agreement is the expiration of a fixed term contract of hire to which the parties initially agreed. (See VQ 135.)
Regardless of who moved first, there is no separation if there would have been no work available in any event.
D. Good Cause
"Good cause" is defined in Title 22, Section 1256-3(b):
"Good cause" exists for leaving work, when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances. Generally good cause for leaving work is decided on the facts at the time the claimant left work. Unless there is a timely connection between any alleged reason for leaving and the actual leaving, the employee has waived what might otherwise justify termination of the employment relationship and has negated the required causal connection between any given alleged reason for leaving and leaving. The claimant may submit several reasons for leaving work, some of which, when considered individually, do not constitute good cause. However, if one reason which is good cause is a substantial motivating factor in causing the claimant to leave work, the claimant's leaving is with good cause.
Title 22, Section 1256-3(c) provides:
Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause.
Once the claimant's reasons for leaving are determined, the interviewer must apply a three part test to determine the presence of "good cause" as indicated by the regulations quoted above: (1) Is the reason for leaving "real, substantial, and compelling"? (2) Would that reason cause a "reasonable person," genuinely desirous of working, to leave work under the same circumstances? (3) Did the claimant fail to attempt to preserve the employment relationship, thereby negating any "good cause" he/she might have had in leaving?
Is the reason for leaving "real, substantial, and compelling"?
"Real, substantial, and compelling" reasons are necessarily difficult to interpret in the abstract as they depend upon surrounding circumstances to give them meaning.
In California Portland Cement v. CUIAB (178 C.A.2d 263, 1960) the court held:
. . . . "[G]ood cause" and "personal reasons" are flexible phrases . . . . However, in whatever context they appear, they connote, as minimum requirements, real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith."
"Compelling," in this sense merely means that the claimant's reasons for quitting exerted so much pressure that it would have been unreasonable to expect him or her to remain with the employment. The "pressures" exerted upon the claimant may be physical (as with health), moral, legal, domestic, economic, etc.
The next question then becomes, what are the standards by which the interviewer determines whether the "real, substantial, and compelling" reason is sufficient under Section 1256 to avoid a disqualification?
Would that reason cause a "reasonable person," genuinely desirous of working, to leave work under the same circumstances?
"Reasonable" is defined in Black's Law Dictionary as, "Just; proper. Ordinary or usual . . . . Thinking, speaking, or acting according to the dictates of reason; not immoderate or excessive, being synonymous with rational . . . ."
The "reasonable person" is physically the same as the claimant. If the claimant is blind, deaf, or otherwise physically impaired, he/she is entitled to have allowances made for that disability by others, as he/she cannot be required to conform to physical standards that he/she cannot meet. However, the claimant must take the precautions which the ordinary reasonable person would take if he/she were similarly impaired.
Likewise, a claimant confronted with an emergency (defined as a sudden or unexpected event or combination of circumstances which calls for immediate action) is not held to the standard of conduct applied to the person who is not in an emergency situation. In that case the claimant has no time for adequate thought, or is so disturbed or excited that he/she cannot weigh alternative courses of action and must make a speedy decision based upon impulse or guess. The claimant, however, will be held accountable if the emergency was of his own doing, or could have been anticipated.
In sum, the claimant must act as would a reasonable person under the same circumstances. As pointed out in Zorrero v. CUIAB, (47 Cal. App.3d 434, 1975):
[T]he quitting must be for such a cause as would reasonably motivate in a similar situation the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the . . . unemployed.
Thus, for the purposes of determining eligibility, a "reasonable person" is an average, prudent person who is genuinely desirous of retaining employment.
Did the claimant attempt to preserve the employment relationship?
Once the interviewer has determined the true reason for the voluntary quit, he/she must determine if the quit was the only reasonable alternative open to the claimant. Despite any good cause that the claimant might have had, a failure to attempt to preserve the employment relationship before resorting to a quit may negate any good cause for leaving.
Title 22, Section 1256-3(c) provides:
Prior to leaving work the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause.
While the claimant's "duty" to preserve the employment relationship may be clear, the claimant's "attempts" to do so may be subject to a good deal of interpretation. The facts of each particular separation will determine whether the claimant's efforts to preserve the employment relationship were reasonable as determined by the "reasonable person" standard.
Title 22, Section 1256-3 provides:
This duty may be satisfied by reasonable steps, including, but not limited to, any of the following:
- Seeking an adjustment of the problem by allowing the employer an opportunity to remedy the situation if the employer can reasonably do so.
- Seeking a leave of absence or transfer to other employment with the same employer if likely to remedy the problem and if the claimant knew or should have known that a leave or a transfer probably would have been granted had one been requested.
- Taking steps within his or her own control, such as hiring a sitter for child care to solve a child care problem, or joining a car pool or repairing an automobile or purchasing a replacement vehicle to solve a transportation problem.