Many times when an employment relationship is not going well, both parties realize it. The employee and the employer may agree that it is best to sever the relationship. Employees, however, are often asked to give two-weeks’ notice before leaving a job, whereas employers rarely afford the same luxury. This can cause a problem for employees who give notice, but are terminated before the two weeks expire. Often when this happens, the employee will seek unemployment benefits, but the employer will contest the application on the grounds that the employee indicated her desire to leave. So, who wins in this kind of situation?
An individual is disqualified from receiving unemployment benefits if the individual left the most recent work voluntarily without good cause or the individual was discharged for misconduct connected with the most recent work. Unemployment Insurance Code §1256.
The Employment Development Department and the California Unemployment Insurance Appeals Board address these issues on a daily basis. In determining whether there has been a voluntary leaving or a discharge, it must first be determined: Who was the moving party in the separation? If the claimant left the employment while continuing work was available, the claimant was the moving party. If the employer refused to permit the claimant to continue working, although the claimant was ready, willing, and able to do so, the employer was the moving party.
The Unemployment Appeals Board has held that an employer who discharges the claimant prior to the effective date of the claimant’s intended resignation, and who pays no wages after the last date of work, is the moving party in the separation.
Similarly, the Board has decided in the past that “while the action of one party initially laid the groundwork for a separation from employment, the subsequent action of the other party superseded it by changing the effective date of the separation. Such an action by the second party may alter the legal status of the separation itself."
Indeed, many cases have addressed these same circumstances. In one case, the Appeals Board held that “the fact that a person may set a date for resigning from employment is not the controlling factor. The most pertinent consideration is whether the claimant could have remained working for an employer on the actual date he left."
In another, the Board found “an employer who discharged the claimant prior to the effective date of the claimant’s intended resignation, and paid no wages after the last day of work, was the moving party in the separation."
In this situation, often the only remaining question is whether claimant was discharged for misconduct connected with the work. “Misconduct connected with the work" is a substantial breach by the claimant of an important duty or obligation owed to the employer, willful or wanton in character, and tending to injure the employer. When an employee can show that she was not discharged for misconduct connected with the work, then even if she had given notice, if the employer terminated her before the expiration of the notice period, she will often be successful in her unemployment claim.