July 2017 Briefly: An Unemployment Case Analysis


The claimant quit voluntarily after a discussion with her manager regarding her attendance.  She was allowed benefits upon a finding that she was discharged, but not for misconduct connected with the work.  The employer appealed, and a hearing was scheduled before an administrative law judge.

At the Hearing

The Employer’s Evidence:  The employer testified that the claimant was having significant attendance issues.  The claimant’s manager testified that he called her into his office and told her that if she did not improve her attendance from that date forward, she could be subject to disciplinary action, including discharge.  The claimant’s manager testified that the claimant told him that she knew that she could not improve her attendance due to the demands of her personal life.  She offered her resignation, which he accepted.
The Claimant’s Evidence: The claimant testified that she was effectively discharged during her conversation with her manager.  She testified that she knew that termination was certain because personal issues would cause her to have more absences.  She testified that she knew that if she was discharged, she would not be considered to be rehirable.  She wanted be able to return to the employer if possible.  She gave no other reason for offering her resignation.

The Hearing Decision

The Administrative Law Judge (ALJ) found that the claimant quit voluntarily without good cause connected with the work. The ALJ found that the claimant was not discharged because she had continuing work available to her and the opportunity to improve her attendance.  There had been no decision to terminate her employment.  The claimant offered no evidence to support a finding of good cause to quit, so she was disqualified from benefits.  The claimant disagreed and appealed, arguing that she was effectively discharged during the conversation with her manager.

The Board of Review Decision

The Board of Review (The Board) agreed with the ALJ’s decision and the claimant remained disqualified from benefits.  The Board found that the ALJ’s decision was reasonably based on the record of evidence.  The claimant quit voluntarily with continuing work available, and presented no evidence that she’d quit with good cause connected with the work.


  1. A determining factor in whether a separation is a quit or a discharge for unemployment purposes is whether continuing work was available to the claimant.  In this case, the claimant was informed that she could face termination in the future if she did not improve her attendance.  The employer had not decided to discharge her, but made it clear that it was a possibility.  The claimant could have reported for work on the date of her next scheduled shift, and other shifts thereafter as long as she was able to report to work and improved her attendance.  Choosing not to report for future work is generally considered to be resignation.
  2. The fact that a claimant believes discharge to be certain in the future does not generally convert a quit into a discharge for unemployment purposes.   In this case, the claimant believed that she was discharged due to the conversation with her manager.  However, the claimant and the manager agreed at the hearing that she had the opportunity to continue to work.   In this case, when the claimant filed her unemployment claim, she reported that she had been asked to resign.  The state initially found that the claimant had been discharged.  At the hearing, the claimant’s manager appeared to testify under oath that she was not asked to resign, but instead was warned that her attendance was putting her position in jeopardy.  The manager was able to prove that continuing work was available.  In similar cases, ensure that the person who had the final conversation(s) with the claimant appear to testify.  If the employer had not presented the manager as a witness, and the claimant had testified that her manager had asked her to resign to avoid having a discharge on her employment record, the outcome of this case could have been different. 

For questions, or to learn how Equifax can help your organization with unemployment case management, contact Pete Krieshok at pete.krieshok@equifax.com.

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About Peg Elofson

Peg oversees our Unemployment Hearing Consultants. She has more than 15 years of experience in the unemployment industry, with particular focus in unemployment appeals. Her experience includes account management, hearing representation, and Board of Review appeals. Peg joined Equifax through the acquisition of TALX Corporation in 2007. She holds BSBA and JD degrees from Creighton University.