Did the Employee Quit in Reasonable Anticipation of Being Fired or Otherwise Discharged From Employment?

A separation is not voluntary if it is imposed by the employer. An employee who leaves work because of a reasonable belief that he or she is about to be fired will not be disqualified under G.L. c. 151A, § 25(e)(1).

In both Malone‑Campagna v. Director of the Div. of Employment Sec., 391 Mass. 399, 461 N.E.2d 818 (1984) (employees who had collectively resigned claimed at the hearing that they did so because they believed they were about to be discharged for refusing to conform to new, unlawful policies implemented by the employer), and Scannevin v. Director of the Div. of Employment Sec., 396 Mass. 1010, 487 N.E.2d 203 (1986) (employee believed he was about to be fired and so failed to submit medical document required to preserve his job), remands were required for findings as to whether the claimants' beliefs that they were about to be fired were reasonable.

In Gabovitch v. Jurczak, 76 Mass. App. Ct. 1109, 920 N.E.2d 88 (2010) (unpublished), the Appeals Court affirmed a lower court ruling that the employee reasonably believed that her job was coming to an end due to the dissolution of the employing partnership and that she left work for good cause attributable to the employer and was therefore eligible for UI benefits. 

If the employer gives the claimant the alternative of quitting or being discharged and he or she chooses to resign, the claimant will not be disqualified under G.L. c.151A, § 25(e)(1), but if DUA determines that the intended discharge would have been for misconduct or a rule violation, the claimant may be disqualified under § 25(e)(2).

Although it is not an unemployment case, practitioners should be aware of the SJC's decision in Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357 (1997), holding that it was not a violation of public policy to terminate an employee at will who, due to her responsibilities as a single parent of a young child, could not work the additional overtime hours which her employer required. The court did note, however, that the legislature has directed that unemployment should be available where domestic responsibilities limit a person's availability to work. 425 Mass. at 756. Therefore, if the employee were discharged, she should not be disqualified under § 25(e)(2), and if she resigned in anticipation of discharge, she should not be disqualified under § 25(e)(1).

Retirement

In certain cases, an employee who has some control over the actual date of retirement may still qualify for UI benefits. Thus, in O'Reilly v. Director of the Div. of Employment Sec., 377 Mass. 840, 388 N.E.2d 1181 (1979), an employee who accepted his employer's proposal to accelerate his retirement by six months was not disqualified from receiving benefits since job separation was inevitable. However, an employee will not be deemed eligible if he or she opts for early retirement without reasonable belief that mandatory retirement is inevitable. Klockson v. Director of the Div. of Employment Sec., 385 Mass. 1007, 432 N.E.2d 704 (1982) (finding claimant's belief that he would soon have been discharged unreasonable where the employer had no mandatory retirement policy, several employees older than the 65 year old claimant worked for the employer and the claimant had more than 10 years' seniority).

An employee who reasonably believes she will be laid off will not be disqualified for retiring before the layoff is announced. In White v. Director of the Div. of Employment Sec., 382 Mass. 596, 416 N.E.2d 962 (1981), the claimant accepted a retirement incentive because he had heard rumors of an impending layoff and had limited seniority. He believed that if he did not retire, he would be laid off soon after his retirement date. The Court ruled that, if his belief was reasonable, his leaving was not voluntary.  In a subsequent case, the Court held that if the employer created uncertainty about whether the individual would or would not be laid off as part of a Reduction in Force (RIF), then accepting a voluntary severance package does not disqualify one for UI. State Street Bank v.. Deputy Director of the Div. of Employment and Training, et al., 66 Mass. App. Ct. 1, 10-12,  845 N.E.2d 395 (2006); Charette v. Commissioner of the Div. of Unemployment Assistance, 72 Mass. App. Ct. 1114, 892 N.E.2d 837 (2008) (unpublished decision).

Layoffs and Voluntary Severance Packages

Generally, an employee who is laid off involuntarily is eligible to receive benefits. This is true even when an employer's layoff scheme grants limited discretion to its employees to decide which workers are laid off. For example, where an employer announces a layoff plan which contains voluntary as well as potentially involuntary components and thereby creates an environment in which an employee is forced to speculate on the likelihood that her or she will be involuntarily terminated, such employee has "good cause attributable to the employer" to leave work and take a Voluntary Severance Package. See State Street Bank & Trust Co. v. Deputy Director of the Div. of Employment and Training, et al., 66 Mass. App. Ct. 1, 845 N.E.2d 395 (2006); Curtis v. Commissioner of the Div. of Unemployment Assistance, 68 Mass. App. Ct. 516 (2007); Charette v. Commissioner of the Div. of Unemployment Assistance, 72 Mass. App. Ct. 1114, 892 N.E.2d 837 (2008) (unpublished opinion).

When given a choice by management of remaining at work or accepting a layoff due to a general reduction in the work force, a claimant who agrees to be laid off is not subject to disqualification. SRH § 1208(E). This is because it is the employer who decides to lay off staff and the employer can accept or reject the claimant's offer. Morillo v. Director of the Div. of Employment Sec., 394 Mass. 765, 477 N.E.2d 412 (1985). However, the holding of Morillo is limited to circumstances in which the employer has announced that layoffs will occur and does not make available a financial incentive for employees to choose in lieu of being subject to layoff. Connolly v. Director of the Div. of Unemployment Assistance, 460 Mass. 24, 28, 948 N.E.2d 1218 (2011) (claimant who accepted severance package was not eligible for UI where she was not compelled to apply for the termination, did not believe her job was in jeopardy, and left in part for personal reasons). In so holding, the Connolly Court found that there was no analytical difference in early retirement and incentive-based termination packages and that it was not dispositive that the employer had made the final decision in accepting the claimant’s resignation.