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35. When Does DUA Treat a Discharge As a Quit?

ALERT:   IN LIGHT OF THE COVID-19 EMERGENCY, ASPECTS OF THE UI PROCESS HAVE BEEN MODIFIED.  VISIT https://www.masslegalservices.org/covid-19-and-ui FOR CURRENT INFORMATION.

There are several situations that DUA and the case law treat a discharge 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 Security, 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 Security, 387 Mass. 528, 441 N.E.2d 257 (1982), where the claimant was fired from a city job when his employer realized that the claimant 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 Security, 394 Mass. 1002, 475 N.E.2d 1216 (1985); Harvard Student Agencies v. Director of the Div. of Employment Security, 12 Mass. App. Ct. 871, 421 N.E.2d 470 (1981); AH c. 6, § 1A.9.

A frequent example is where the employer has a policy requiring an employee who is going to be absent to “call in.” The employer treats the failure to call in as job abandonment, 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 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 that would bring about his own unemployment, which could give rise to a § 25(e)(1) disqualification. This argument was rejected in Orellana v. Director of the Div. of Unemployment Assistance, Gloucester District Court, CA No. 1139 CV 0101 (2010) (holding that an employee who was told to ‘find work elsewhere’ after showing up to work smelling of alcohol was effectively discharged, and that a decision to deny him UI on the grounds that he had quit was precluded by the manner of his discharge).

Note 1: 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).

Note 2: DUA sometimes overuses the “constructive quit” analysis. 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 her employment relationship. The Appeals Court has addressed this issue in an unpublished opinion, Saunders Enterprise Payroll Corp. v. Commissioner of the Dep’t of Employment & 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), and Sacco v. Nordberg, Malden District Court, CA No. 9550 CV 1753 (1997) (holding that in response to Court’s Remand Order, the Board could not reverse its prior decision that claimant had been discharged and decide that claimant had quit).

On the other hand, a discharge may not convert into a constructive quit where the employer sought to execute a new contract with the employee, and the employee was terminated for refusing to do so. In Pulde v. Director of the Div. of Unemployment Assistance, 84 Mass. App. Ct. 1122, 998 N.E. 2d 375 (Mass. App. Ct. 2013) (unpublished), the Appeals Court vacated and remanded the review examiner’s decision, holding that the DUA should have reviewed the case under § 25(e)(2)(discharge), not § 25(e)(1)(quit). The employer had presented the employee with a conditional reinstatement agreement coupled, with a “sign this or else” ultimatum. The employee refused to sign the agreement because she believed that it may have terminated her rights as a union member. The employer then terminated the employee. The Court reasoned that the claimant’s refusal to alter the contractual terms of a collective bargaining agreement did not mean that she left her job voluntarily, therefore the DUA should not have applied § 25(e)(1). 

The Board, in at least 2 instances, has held that “last chance agreements” that a claimant refuses to sign constitute a discharge rather than a quit.  BR-0002 1377 85 (10/6/14) (Key) (same as Pulde); BR-0008 9856 93 (1/9/14) (Key) (finding that a last chance agreement was a firing not a quit, and the claimant was not disqualified as underlying conduct was poor work performance).

In determining whether separation from employment was due to quit or discharge, the Board noted that the examiner should take into consideration whether the employee made attempts to contact the employer in the days following being sent home to indicate that he wished to remain employed. BR-10232330 (11/21/2014). In the same case, the Board stated that the examiner should also consider whether the employee contested a company document indicating that the employee “quit” his job shortly after receiving this document.

The Board has held that where an employer did not accept the terms of a claimant’s proposed consulting agreement in lieu of continued employment, the proposal did not amount to a notice of resignation.  Therefore, the claimant could not be disqualified after discharge where there was no misconduct.  BR-0018 7766 38 (11/14/16) (Key).  And where a claimant failed his probationary period as a newly promoted supervisor and refused to reapply for a cashier position, the Board determined that he was effectively discharged. BR-0008 9910 74 (6/9/14) (Key).

Note 3: When it is unclear if separation from employment was due to quit or discharge, an advocate arguing that separation was due to discharge should also present arguments that even if the separation was due to quit, the employee was entitled to benefits because such quit was the result of “urgent, compelling, and necessitous reason” or “good cause attributable to the employer.” Failure to present facts that support such arguments during the hearing could result in disqualification for UI benefits if the review examiner determines that separation was, in fact, due to “quit.” See BR-1498659 (11/21/14).

The Board ruled that where employees leave their employment under the “reasonable belief” that they are “about to be fired,” the reason for separation from employment for UI purposes is “discharge.” BR-10232330 (11/21/2014); BR - 0002 4910 00 (3/27/2014). In such cases, “[their] separation is not disqualifying if the impending discharge itself would not have been for disqualifying reasons.” BR - 0002 4910 00 (3/27/2014); see BR - 0008 9799 73 (2/7/2014).