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PERSPECTIVES

Lesson for employees: Quit job, lose unemployment benefits

"Quit, quit for shame, this will not move..."
Sir John Sucking, Aglaura (1638)

By Marshall H. Tanick

The past year experienced a record number of unemployment compensation claimants. The number of Americans receiving jobless benefits exceeded 20 million, comprising about 6 percent of the total population. While unemployment hovered at about 10 percent of the adult work force as the new decade began, nearly five million Americans were drawing unemployment benefits.

The figures were comparable in Minnesota, where 252,468 Minnesotans received unemployment benefits, at some time during 2009, and the jobless figure as 2010 began was slightly higher than 10 percent.

Last year, the Minnesota Court of Appeals heard 316 unemployment compensation cases, more than one-fifth of its civil caseload, and 14 percent of its overall docket. That was nearly double the 172 cases - comprising 13 percent of the civil docket and 8 percent of the overall cases - in 2008. In 2007, the court adjudicated 250 unemployment cases, about 18 percent of the civil case load and 11 percent of the docket. The figures for these three recent years are substantially greater than previous years, when the numbers of unemployment appeals hovered between 100 and 125 annually.

The genre of unemployment cases involving employees who resign seem to be increasing too. But, by quitting, employees almost always deprive themselves of unemployment compensation benefits. That message was echoed in a series of cases decided recently by the Court of Appeals.

Testing Terminations

An employee who lost her job after she refused to re-take an aptitude test for a new position, after previously failing it, was denied unemployment compensation benefits in Lucas v. Qwest Corp., 2009 WL 3172174 (Minn. App. Oct. 6, 2009) (unpublished).

The employee began in a temporary position and, after being told her job would be eliminated, was offered an upgraded position if she could pass an aptitude test.

After taking the test and failing it, she was allowed to re-take it. The employee said that she did not want to do so, believing that she lacked the ability for the new position. The job was then terminated, and she sought unemployment compensation benefits. An unemployment law judge determined that the employee was not entitled to benefits because she voluntarily left the position.

The Court of Appeals affirmed, holding whether the employee quit or not depends upon whether she made a "free-will choice to leave the employment." Although the employee had "no choice" in the elimination of the first position, she did make a "free-will choice" to not take the aptitude test, after initially failing it. The refusal to take it after failing the first time indicated that she "voluntarily quit by failing to pursue the opportunity to continue employment," which disqualified her from unemployment benefits.

'Attitude' Appeal

An employee told to take a "day off" and return with a better attitude lost his appeal for unemployment compensation benefits in Benson v. Granite City Jobbing Co., Inc., 2009 WL 3172276 (Minn. App. Oct. 6, 2009) (unpublished).

After a confrontation with the boss, he was told to "leave and you can come back when your attitude changes, take the rest of the day off." The employee did not return to work and applied for unemployment benefits, claiming he had been discharged.

The Court of Appeals affirmed the ruling of the unemployment law judge that he did not quit for legitimate reasons. It was "plausible" to interpret the boss' comment to mean that the boss expected the employee to "correct his demeanor and return to work the next day," rather than a discharge. The boss sent the employee home "only temporarily because of [the employee's] behavior." The comment by the boss would not lead "a reasonable employee to believe that the employer would no longer allow the employee to work." Because the employee chose not to return to work, he was ineligible for unemployment benefits.

Relocation Rulings

Another employee who would have been eligible for unemployment benefits under slightly different circumstances was denied them in Kimeu v. Foundation for Healthcare Continuums, 2009 WL 3735846 (Minn. App. Nov. 10, 2009) (unpublished). The employee quit her job because her husband, who was in the military, was transferred to Texas. She sought benefits under the "good reason" provision of § 268.095, subd. 3 (c) which requires that to be eligible for benefits, the resignation be attributable to a "good reason" caused by the employer.

Although numerous cases in other jurisdictions grant unemployment to military spouses who quit their work to relocate with their spouses, the "peculiar" Minnesota law is not governed by cases or statutes in other jurisdictions.

The state's statute is exclusive and no other definition applies. Under that provision, the employee is not eligible for benefits because the employer was "not responsible for the relocation of [her] family."

It was no solace to this military spouse that, if the situation occurred later, she would have been eligible for benefits. The Legislature, in conformance with the American Recovery Reinvestment Act - the so-called federal stimulus plan - amended the statute early in 2009 to allow employees to receive benefits if they quit in order to accompany a spouse whose job location change makes it impractical for the applicant to commute. But that went into effect after the employee had already quit and brought this proceeding. The former law, effective at the time of her resignation, "did not cover a situation where an employee quits to follow her relocating spouse."

Another relocating employee also was deemed ineligible for unemployment compensation benefits in Bethune v. Target Corporation, 2009 WL 3818346 (Minn. App. 2009) (unpublished).

The claimant, who worked for Target, sought a transfer to Louisiana and then moved to that state, without assurance from his employer that work would be available to him at a facility there. His claim for unemployment compensation benefits was denied by an unemployment law judge.

The determination that the employee quit without "good reason" attributable to the employer was affirmed by the Court of Appeals. The employee requested a transfer because he wanted to be "going back" to Louisiana, not because of a reduction in hours and pay, as he argued in his claim. The evidence showed that he quit his job due to "his move," not his reduction in hours.

The unemployment law judge also "minimally" satisfied the statutory requirements for explaining why the employer's testimony was credited and the employee's testimony was not believed.

Floater Failure

A retail store manager who refused to take a new position as a "floater" for three other stores in a chain failed to obtain unemployment compensation benefits in Sutten v. East Metro Clean N Press, Inc., 2009 WL 3735878 (Minn. App. Nov. 10, 2009) (unpublished).

The claimant quit after she was told that her site would be closed and she could rotate between three other locations, at the same pay and benefits, although without the title of manager. She claimed she "had good reason to quit because she would have been required to drive among work locations further from her home without compensation for mileage," and her situation would be less stable with the closing of the store where she worked.

The Court of Appeals rejected that contention because case law holds that an "employee's relocation to a different work site" does not constitute "good reason to quit caused by the employer" if a similar position is offered. While the employee's increased driving expenses and concern that she could "ultimately lose her job because [of] a past practice of closing stores" may be legitimate personal reasons for her to quit, they do not qualify as good reason to "give grounds for unemployment benefits under the statute."

Cab Case

A taxicab driver who was fired a day after giving two weeks notice of intent to quit was not allowed unemployment compensation benefits in Johnson v. A.B. Taxi & Shuttle of Austin, Inc., 2009 WL 3736123 (Minn. App. Nov. 10, 2009) (unpublished).

While an employee who quits generally is not entitled to unemployment benefits, a claimant is eligible if, after giving notice of intent to quit, the employee is not permitted to work the entire notice period. If the discharge is within 30 days of the date of notice of quitting, the employee is considered to have quit as of the date of notice.

Because the cabbie was terminated right after he gave two weeks notice, he was eligible for benefits for the two week time period during which the employer "did not allow him to work" after he resigned. However, he did not apply for unemployment at the time the employer disallowed him to work the final two weeks, but waited to apply for more than two months.

Under Minn. Stat. §268.085, subd. 1(2), coupled with Section 268.07, subd. 3(b), an employee can receive benefits only for the weeks in which the employee is eligible "which occur after the effective date of his application."

Because the employee did not seek benefits for more than two months after his effective quit date, he was not eligible for any benefits, even for the two week period he was not allowed to work.

Employees quit their jobs for many reasons. The lesson of these cases is that most reasons are insufficient to allow a resigning employee to be eligible for unemployment benefits.

Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace related matters.