Saturday, July 26, 2014

Jumping the Gun

Kelley v. Department of Labor, 2014 VT 74

By Andrew Delaney

I couldn’t say it better than the SCOV. “This case turns upon a common question in employment disputes: did the employee jump, or was she pushed?”

Claimant was employed at Maple Leaf Farm Association, Inc., as a part-time treatment counselor for seven years. Due to a conflict with her supervisor, she submitted a letter of resignation. She said her last day would be a little over two weeks later. Employer allowed her to continue working, but that only lasted four days; claimant got the proverbial boot and was escorted off the premises.

Claimant applied for unemployment benefits. The initial adjuster found that she had left employment voluntarily without good cause and denied the claim. So claimant appealed to a referee, who found that claimant was entitled to benefits, and that there was no indication of misconduct in the record.

Then employer appealed to the Employment Security Board, which just said the referee got it right. Next stop: the SCOV.

The SCOV notes that its review is deferential ‘cause this kind of thing is in the Board’s wheelhouse. Facts as found stand unless clearly erroneous, and conclusions stand if supported by the facts.

Generally, when an employee leaves a job voluntarily, the employee can’t get unemployment. There’s a statute that says so. If you’re into the hippity-hop music, there’s also an Immortal Technique song that describes the concept succinctly (to wit: “I’d rather get fired than quit . . .”).

The SCOV explains that the “plain language of the statute supports claimant’s position.” Claimant didn’t leave when she said she was going to, she got run out the door four days after she gave notice. So, the SCOV explains, that’s the day the voluntary-or-involuntary analysis applies to.

The SCOV looks at the parties’ intent at separation to determine the fired-or-quit question. Here, claimant intended to work another two-and-a-half weeks. Employer agreed she could. But then employer fired her. Were it not for employer’s actions, claimant would’ve actually quit in another two weeks.

Importantly here, employer agreed on the notice period. Had employer said something along the lines of “you don’t need to give notice,” and had claimant then left, that would’ve been a voluntary quit. The agreed- notice-period distinction separates this from a 1978 case that went employer’s way. A few other resignations-followed-by-employees’-changes-of-hearts-and-employers-refusing-reinstatements-before-the-end-of-the-notice-period cases are also distinguished.

Employer argues that it paid claimant through the end of her notice period, and that renders her separation voluntary. That doesn’t go very far with the SCOV. There was some accrued vacation pay paid out, but there’s no indication it was for the notice period. The SCOV reasons it was vacation pay, and that’s all it was.

Employer’s final argument is that the only eligibility period is the time between termination and the end of the notice period. In fact, there was a statutory amendment this year that provides exactly that. But since we’re under the old statute, the SCOV isn’t playing that game.

And there you have it. Though it’s safer to “jump the gun” now, employers are safest to let the notice period play out.

No comments:

Post a Comment