Part III -- Separation from Work

A claimant may meet the financial and personal eligibility requirements discussed in Part 2 but not be entitled to benefits because DUA determines that he or she left work under "disqualifying" circumstances.

As part of the application process, both the claimant and the employer provide their respective versions of events leading up to the employee's separation from work. (See Question 3). A DUA claims adjudicator then determines if the separation was for disqualifying reasons pursuant to G.L. c. 151A, § 25(e), which states that an individual will be disqualified if he or she has left work for any one of a number of reasons.  The most common are:

• by discharge shown to the satisfaction of DUA by substantial and credible evidence to be attributable to deliberate misconduct in willful disregard of the employing unit's interest or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be a result of the employee's incompetence;
• voluntarily, unless the employee establishes by substantial and credible evidence that he or she had good cause for leaving attributable to the employing unit or its agent or for urgent and compelling personal reasons; or
• because of conviction of a felony or misdemeanor.

Following this statutory scheme, cases are characterized generally as either discharge cases (Section 25(e)(2)) or quit cases (Section 25(e)(1)).

A party may dispute DUA's characterization. For example, DUA may accept the employer's version of facts and treat the case as a quit, whereas the claimant believes he or she was fired. See Question 35. This characterization can be challenged in a hearing (see Appeals Process, Part 6).  In a recent unpublished opinion, the Appeals Court affirmed DUA's practice of treating the "failure to call in" as job abandonment under §25(e)(1).  "An employee who anticipates a legitimate absence from work must take reasonable steps to preserve [her] employment. Where an employee fails properly to notify the employer of the reason for his absence, his resulting termination is tantamount to a voluntary resignation under G.L. c. 151A, § 25( e )(1)." Flores v. Acting Director of the Div. of Employment Assistance, 70 Mass. App. Ct. 1102 (2007), citing Scannevin v. Director of the Div. of Employment Security, 396 Mass. 1010, 1010-1011 (1986).   At the outset of the hearing, the review examiner asks preliminary questions and decides whether the hearing will proceed as a discharge case or a quit case.

While this decision will determine the order of the testimony, both the discharge and quit issues remain before the review examiner, who will make findings of fact as to the separation.

Different legal standards apply to each category of case and are discussed separately, below.