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Did You Fire Them or Did They Resign?

It often happens that an employee tells the employer that the employee is quitting...but later the employee claims the employer really fired the employee.

How does this happen?

Let's look at a typical fictional example. Steve, a machine operator, decides that he wants to quit to go to see his sick grandmother who lives in Alabama. Steve tells his employer that he is quitting, wishes everyone the very best, and leaves for Alabama.

VOLUNTARY QUIT TURNS INTO "LACK OF WORK": Steve then files for unemployment insurance benefits and finds out to his dismay that he is not eligible for unemployment if he voluntarily quit. So, he changes his story. Now he says there was a "lack of work" forcing him to leave to because his employer told Steve they did not need Steve anymore because work is slow.

Steve changed his status from an employee who quit to an employee who was discharged due to lack of work.

EMPLOYER PROTESTS NOTICE OF CLAIM: Once Steve files for unemployment insurance benefits, a Notice of Claim is sent to the employer (Smith Manufacturing).

When Smith Manufacturing receives the Notice of Claim, the reason given is "lack of work." Smith Manufacturing may think this is a typographical error. But, it is actually the new reason Steve has decided caused his separation from employment.

Smith Manufacturing knows there wasn't a lack of work. In fact, Steve's leaving put them in a bind because Smith Manufacturing had to quickly hire someone else who was inexperienced and untrained to fill Steve's position. When Smith Manufacturing protests the Notice of Claim, Smith Manufacturing does its best to explain the circumstances under which Steve left.

LOCAL OFFICE DETERMINATION FINDING THE QUIT WAS DUE TO LACK OF WORK: Smith Manufacturing is upset when it receives a Local Office Determination finding that Steve quit due to lack of work. Smith Manufacturing is angry and protests because now Steve is getting unemployment insurance benefits even though he clearly quit.

KEY ISSUE FOR TELEPHONE HEARING: A telephone Hearing is then scheduled in which Smith Manufacturing will now have to convince the Hearing Officer that Steve voluntarily quit for his own personal reasons and not for "lack of work."

In my experience, the key issue under this fact pattern is this question: Could Steve have remained in employment if he wished?

Steve will try to convince the Hearing Officer that he could not have remained in employment. He may even introduce as evidence statements by others in the Company that business is slow, we need to cut down on the number of machine operators, etc.

Smith Manufacturing will want witnesses at the Hearing who hopefully heard Steve say he had to quit because his grandmother was sick, that Steve's leaving put the Company in a bind, etc.

The Hearing will boil down to who can present the most persuasive facts on the key question of could Steve have remained in employment. Did Steve cause the separation or did the employer cause the separation from employment?

It is important at an IDES Hearing for the employer to have well prepared witnesses who can convincingly testify to the key legal issues.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at [email protected].

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