Other than in sexual, racial or other unreasonable harassment cases, discussed above, or cases where a claimant leaves due to the effects of domestic violence (Questions 30 and 33) an employee has a duty to take all reasonable steps to preserve the employment relationship before resigning, unless such efforts would be futile. Where an employee has failed to do this, he or she is said to have caused his or her own unemployment and his or her leaving is not considered involuntary because there was, or may have been, an alternative. In Kowalski v. Director of the Div. of Employment Sec., 391 Mass. 1005, 460 N.E.2d 1042 (1984), for example, the employee’s toleration of harassment by the employer and his failure to complain were legal grounds for denying the employee unemployment benefits after the employee quit his job. The claimant has the burden of proving that further efforts to preserve his employment would have been futile.

Review examiners take this matter very seriously. Following are some cases on this point.

Requesting Leave of Absence or Transfer to Another Position

Leaving work without first requesting a potentially available leave of absence or transfer is a frequent reason for denial of benefits. This requirement is more strictly applied in leavings due to urgent and compelling personal reasons, but can also arise in good cause cases. See Question 30. In Dohoney v. Director of the Div. of Employment Sec., 377 Mass. 333, 386 N.E.2d 10 (1979), for example, the claimant was disqualified after she left without applying for maternity leave or discussing with anyone her plans to return after childbirth. See Question 32.

In Reissfelder v. Director of the Div. of Employment Sec., 391 Mass. 1003, 460 N.E.2d 604 (1984), the claimant left work after unsuccessfully requesting a day off to go to court on a custody matter. She was disqualified because she failed to provide her supervisor with her reason for needing to go to court, but might have been given the time off, and preserved her job, had she done so. 

Note:  It is illegal for an employer to discharge, penalize, or threaten to discharge or penalize an employee who has taken time off to testify in a criminal action if the employee is a victim or is subpoened to testify if the employee has notified her employer prior to the day she is required to be in court. G.L. c. 268, § 14B.

In some situations, transfer to another position will cure or diminish the employee's problem with his or her current position. For example, if the employee is physically unable to do one job, DUA will expect the employee to request transfer to a less demanding position, if one might be available. Again, if no such position is available, or the claimant can show the employer would not have granted the transfer request, no request should be required. And an employee should not be required to request transfer to a position with substantially lower pay or much less favorable conditions.

Notifying the Employer of the Problem with the Employee's Job

A claimant's leaving may be considered voluntary if he or she quits without first informing the employer of the problem with the job and giving the employer an opportunity to take steps to solve it. For example, an employee whose child care responsibilities change so that they conflict with his or her hours of work should notify the employer of the problem to give the employer a chance to offer the employee different work hours. An employer might also be able to offer an injured employee a transfer to light duty. Similarly, a multi-state employer might be able to offer an employee who must move out of state a transfer to a workplace in the new state.

Although an employee must provide an opportunity for the employer to correct any problems, the Board of Review has held that it is not necessary for an employee to take his complaint to the highest level possible in his employing unit in order to remain eligible for benefits upon resigning, if doing so would have been futile. In BR-111647 (9/28/2010), the Board rejected the employer’s contention that the employee should have gone over the manager’s head to human resources in order to preserve his employment, and held instead that the employee made legally sufficient efforts to preserve his job when he made his concerns known to his immediate supervisor, who responded repeatedly that nothing would be done to address them. The Board felt that the manager’s statements demonstrated the futility of further efforts by the employee. The Board cited New York and Mass. Motor Service, Inc. v. Mass. Commission Against Discrimination, 401 Mass. 566 (1988), which held that a claimant notifying his supervisor of the need for a different work schedule constituted adequate effort to preserve employment.

Furthermore, a request for a leave of absence may also be futile because the situation would not be ameliorated with the granting of a leave. SRH § 1204(D). See also BR-108494-CTRM (5/8/2009) (holding that a pregnant employee took adequate steps to preserve her employment before resigning despite not having specifically requested Massachusetts Maternity Leave Act leave, relying in part on the fact that the MMLA, which only allows eight weeks of maternity leave, could not have remedied her need for seventeen weeks of leave).