UI Part III -- Separation from Work
A claimant may meet the financial and personal eligibility requirements discussed in Part 2 but not be entitled to UI benefits because DUA determines that the claiment 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 they have left work for any one of a number of reasons. The most common are:
- leaving by discharge shown, to the satisfaction of DUA, by substantial and credible evidence to be attributable (a) to deliberate misconduct in willful disregard of the employing unit’s interest, or (b) 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, G.L. c. 151A, § 25(e)(2);
- leaving voluntarily, unless the employee establishes by substantial and credible evidence that leaving was (a) for good cause attributable to the employing unit or its agent, or (b) for urgent and compelling personal reasons, G.L. c. 151A, § 25(e)(1); or
- leaving because of conviction of a felony or misdemeanor G.L. c. 151A, §25(e)(3).
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 they were fired (See Question 35.) This characterization can be challenged in a hearing (See Appeals Process, Part 6). (In an unpublished opinion, the Appeals Court affirmed DUA’s practice of treating the “failure to call in” as job abandonment under §25(e)(1).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 Unemployment Assistance, 70 Mass. App. Ct. 1102 (2007), citing Scannevin v. Director of the Div. of Employment Security., 396 Mass. 1010, 1010-1011 (1986)). Conversely, DUA may accept the claimant’s version of the facts and treat the case as a discharge, even when the employer believes the claimant quit. BR-0024 4782 46 (1/17/19) (reasonable for a claimant to think they have been discharged if their employer tells them not to report to work following a heated conversation).
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. However, the DUA AH makes clear that: “[I]f the parties disagree about the nature of the separation, then the burden of proof is on the employer.” AH c. 1, § 3.2A. While the review examiner’s decision on whether the case is a quit or discharge 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.