Category: Unemployment

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Make it easy for the judge to rule in your favor

One of the judge’s hardest jobs at a trial is to decide what happened because each side usually has a different view of events. To win, you want to do things that make it easy for the judge to rule in your favor. One technique frequently used by lawyers, because we know a judge may later be deciding what happened, is using a confirming letter or email.

Assume you are at an unemployment hearing after an employee quits over the phone. The employee testifies that he was laid off, maybe because after he quit he learned the impact it had on eligibility for benefits. The HR Manager testifies that he quit. If we had a celestial video recorder, we could see the employee did quit. But both witnesses are credible and there is no other evidence of what happened.

It is difficult for the judge to rule in your favor in this situation. The scales of justice are equally balanced. But there is public policy that favors awarding benefits to the unemployed which acts as a gentle breeze blowing down on the employee’s side of the scale.

Now, what if you have a letter to offer into evidence that was sent certified mail return receipt requested right after the phone call. (Or an email – hopefully sent with a delivery receipt so you have proof of receipt) The letter, or email, says:

Dear Employee,

This confirms our telephone conversation this afternoon. You informed me that you were quitting effective immediately. We will process the necessary paperwork and mail your final check.

We wish you well.

Sincerely,

HR Manager

The employee never responded to your letter. (They rarely do!)

Now, you have tilted the balance of the evidence way over to your side. By not responding to your letter, the employee essentially admitted that he quit. With this simple step, you have made it easy for the judge to rule in your favor.

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What happens if you fire an employee who has given notice?

One of your non-exempt employees, Robert, tells you he is quitting in four weeks. You will be sorry to see him go, but you appreciate the notice.

Over the next few weeks, you find a replacement to start the Monday after Robert’s last day. You start to notice, though, that Robert’s heart is not in his work. He slacks off a lot and talks constantly to coworkers about his future plans. On Thursday of Robert’s last week, you decide you’ve had enough. You are better off without him and tell him you are making Thursday his last day. You do not pay him for Friday because you know you do not have to pay non-exempt employees when they don’t work.

Is Robert eligible for unemployment benefits?

Probably. An employee whose job ends because of a voluntary quit is disqualified for unemployment benefits unless the quit is for “good cause.” The statute sets out a specific list of reasons that constitute good cause and none of the reasons apply here. See RCW 50.20.050. On the other hand, a discharged employee is eligible for benefits absent specific reasons considered disqualifying “misconduct.” See RCW 50.04.294.

Here, and although each case has to be decided on its specific facts, even though Robert was going to work only one more day, his job did not end because he quit. It ended because he was discharged. And because nothing he did would likely rise to the level of “misconduct,” he will probably be eligible for benefits.

If, on the other hand, the employer had paid Robert through Friday, you get a different result. Paying the employee through their notice period preserves the “voluntary quit” nature of the resignation making the employee in most cases, ineligible for unemployment benefits.