Q. My company is challenging my unemployment claim because I did not stay in my position for the two weeks they requested upon learning I was being laid off. Is this legal? I was a salaried employee.
A. Unemployment assistance was created by Congress during the Great Depression in 1935 to provide temporary assistance to workers who had lost their job through no fault of their own. To receive benefits an employee must be capable of working and actively seeking work. The Department of Unemployment Assistance (DUA) is the state agency that administers the unemployment assistance program in Massachusetts.
I consulted with Attorney Valerie Samuels, an employment attorney at Posternak in Boston. Ms. Samuels explains, “Generally, a Massachusetts employee will be eligible for unemployment benefits unless one of the following applies:
a discharge as a result of deliberate misconduct in disregard of the employer’s interest, or due to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer. The violation must not result from the employee’s incompetence; or he left work voluntarily, unless the employee establishes by credible evidence that he had good cause for leaving due to a situation created by the employer or left for a reason that is of such a, compelling nature to make the separation involuntary; or because the employee was convicted of a felony or misdemeanor.
Your employer is likely challenging your unemployment claim under the theory that you voluntarily left work, which is only true with respect to the two week notice period. Attorney Samuels notes that under typical circumstances, leaving work voluntarily may disqualify you from eligibility for unemployment benefits. Whether you were paid on a salary or hourly basis is irrelevant when considering your eligibility for unemployment compensation.
The answer to this question depends upon DUA’s interpretation of the word “voluntary.” Under Massachusetts law, a separation from work is not voluntary if for “urgent, compelling and necessitous” reasons caused by circumstances beyond the employee’s control.
An employee may leave work due to sexual, racial or other unreasonable harassment but only if the employer knew or should have known of the harassment. Even if the employee left due to urgent reasons, he must have made a good‐faith effort to remain employed. The employee also will be deemed to have good cause to quit if the reason for leaving work was due to domestic violence such as needing to relocate or fear of domestic violence at or on route to work.
In this situation, you were informed of your imminent separation and asked to continue working for two weeks. While you could have remained during the notice period, your ultimate departure from work was involuntary. As a result, DUA will likely find that you are eligible to receive unemployment benefits but you will be disqualified for the two week period when you could have remained at work. Even if you were to receive unemployment benefits for the notice period, it is likely to be less than your regular salary.
Given that good jobs are hard to come by nowadays, if you receive notice of termination, remain at work until the termination date in order to continue to be paid and not jeopardize your unemployment eligibility, unless you are leaving to join your new employer.