Unemployment – is claimant is at fault?
Every unemployment claim is evaluated by comparing the circumstances under which an employee left her job with the Colorado unemployment statute. The statute creates unemployment benefits, and determines who is eligible. The intent of the Colorado general assembly in creating the unemployment statute is that each eligible individual is entitled to a full award of benefits if he is unemployed through no fault of his own. Zelingers v. Industrial Commission (1984). So, what is “fault”?
To be at fault, a claimant must have acted volitionally in the circumstances which led to job separation. A volitional act is one where the employee has control, or makes a choice, over the circumstances. The determination whether an employee is at fault is a factual one, so each case is different. The unemployment statute specifically identifies situations where a person is considered not to be at fault for a job separation. Some, but not all, of these situations include:
- quitting for lack of work
- uncontrollable addiction – the law requires medical substantiation of the addiction and the employee must have a plan of treatment. Being fired for on-the-job use of or distribution of not medically prescribed intoxicating beverages or controlled substances disqualifies an employee from benefits. Careful, marijuana is a federal controlled substance, still.
- unreasonable reduction in the worker’s rate of pay. In determining whether or not there has been an unreasonable reduction in the worker’s rate of pay, the division of unemployment shall consider, but shall not be limited to a consideration of, whether or not the reduction in pay was applied by the employer to all workers in the same or similar class or merely to this individual, the general economic conditions prevailing in the state, the financial condition of the employer involved, and whether or not the reduction in wage was agreed to by other workers employed in the same or similar work.
- being physically or mentally unable to perform the work, our unqualified to perform the work. This opens the door to claims resulting from illness and excessive absences, lack of sufficient skills or experience to do a job, injuries, or emotional stress.
- quitting a job after a substantial change in working conditions which makes the job substantially less favorable to the employee. However, no change in working conditions shall be considered substantial if it is determined that the conditions prevailing after the change are those generally prevailing for other workers performing the same or similar work.
- quitting due to personal harassment which is so troubling and annoying that any reasonable person would resign.
Because the list above is not comprehensive, and because every unemployment claim is evaluated by the Division of Unemployment based on its own facts, an attorney cannot give an employee or employer advice about odds of winning, or preventing, unemployment benefits without first having the facts.