There are several situations which DUA and the case law treat as a "voluntary quit" under G.L. c. 151A, § 25(e)(1) even though it is the employer who takes action to end the employment. For example, in Barksdale v. Director of the Div. of Employment Sec., 397 Mass. 49, 489 N.E.2d 994 (1986), the claimant was disqualified under § 25(e)(1) on grounds that he "brought about his own unemployment" when he was fired for refusing to pay an agency fee that was the alternative to paying union dues under a state collective bargaining agreement. The logic behind the decision, which is sometimes referred to as a "constructive quit" analysis, is that the claimant voluntarily chose to refrain from paying the fee and thereby left work voluntarily.

A similar analysis was applied in Rivard v. Director of the Div. of Employment Sec., 387 Mass. 528, 441 N.E.2d 257 (1982) where the claimant was fired from a city job when his employer realized that he had failed to take steps to remove a statutory impediment to his ability to hold the position. See also Olmeda v. Director of the Div. of Employment Sec., 394 Mass. 1002, 475 N.E.2d 1216 (1985); Harvard Student Agencies v. Director of the Div. of Employment Sec., 12 Mass. App. Ct. 871, 421 N.E.2d 470 (1981); SRH §§ 1208(G), (H).

A frequent example is where the employer has a policy requiring an employee who is going to be absent to "call in." The failure to call in is treated as job abandonment by the employer and DUA will initially characterize this as a voluntary quit case, even where the employee re-contacted the employer and was told that the job was no longer available.

The same logic, if applied to other cases of deliberate misconduct, would lead to unfair results in many cases. An employee who is fired for drinking on the job, or embezzling the employer's money, or refusing to follow orders could be described as voluntarily acting in a manner which would bring about his or her own unemployment, which could give rise to a § 25(e)(1) disqualification. The flaw in this analysis is that it switches the burden of proof from the employer, who bears it under § 25(e)(2), to the employee, who has the burden under § 25(e)(1) and may circumvent some of the careful "state of mind" assessment required under § 25(e)(2).

DUA sometimes overuses the "constructive quit" analysis, and advocates should be on guard and insist that the principles of cases like Rivard and Olmeda be limited strictly to their facts and to situations where a claimant's actions and expressions show a clear intent to end his or her employment relationship. The Appeals Court has addressed this issue in an unpublished opinion, Saunders Enterprise Payroll Corp. v. Commissioner of the Dept. of Employment and Training, 61 Mass. App. Ct. 1123, 814 N.E.2d 36 (2004). See also: Annotation, Unemployment Compensation: Eligibility Where Claimant Leaves Employment under Circumstances Interpreted as a Firing by the Claimant But as a Voluntary Quit by the Employer, 80 ALR 4th 7 (1990).