Can Worker Who Quits Qualify for Unemployment?

Do you have a question about an on-the-job situation? If so, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, Calif. 92626. Or call (714) 966-7873 and leave a voice mail message with your name and where you live. Questions of general interest will be answered in this column on Mondays.

Question: My employer is often late paying my salary and on occasion has bounced my payroll check. If I quit, am I eligible for unemployment benefits until I secure a new job?

Answer: Generally, when an employee quits his or her employment, particularly without another job, that employee is unqualified for unemployment benefits. To quit for “good cause”--a phrase used in the Unemployment Insurance statute--means “a cause” that would reasonably motivate an average able-bodied and qualified worker in a similar situation to give up employment with its wages in order to enter the ranks of the compensated unemployed.

It certainly appears that you have good cause to leave a job where the employer failed to pay your full salary on time. Since the employer has a cash flow problem and your salary checks were not paid regularly or fully on a number of occasions, you should receive a favorable decision by Unemployment Insurance.

Please remember that for your claim to be valid there are also specific earning requirements that must be satisfied; also there is a limit to the maximum number of weeks you can receive unemployment compensation. If your decision is to quit, you should file a claim with the unemployment office.

--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group

Question: I was hired by a company in Buena Park as a communications technician after leaving prison and was living in a halfway house. The company, which hired me to do field work, knew I did not own a vehicle and said it was no problem--that a co-worker could transport me. After a while, I was given a company car, but eventually the company said it needed it back and that I would have to get my own vehicle. This was at a time when we weren’t working a full 40 hours; I was averaging about three days a week. I need to know what my obligations are to an employer.

--D.B., Yorba Linda

Answer: There is no legal requirement that employers provide vehicles for their employees, even if a vehicle is necessary for the performance of the employee’s duties. Therefore, your company can require you to obtain a vehicle as a condition of your continued employment, but they are required by California law to reimburse you for your work-related use of that vehicle. Usually, this is accomplished via a mileage reimbursement for all miles driven on business.

--James J. McDonald Jr., attorney, Fisher & Phillips, law instructor, UC Irvine

Question: I work for a large Orange County employer that has a retirement policy where a person can retire at age 50 if they have 10 years of service. My job classification was abolished and I was laid off at nine years and seven months. Is there any law that prohibits an employer from laying you off when you’re so close to retirement?

--M.H., Santa Ana

Answer: The federal Employee Retirement Income Security Act (ERISA) prohibits an employer from discharging an employee for the purpose of preventing that employee from receiving retirement benefits. Discharging an employee who is close to retirement may be evidence of such an improper purpose, but by itself would not necessarily be conclusive.

To investigate further, you should probably consult with an attorney who specializes in this area. For assistance in finding one, call this Orange County Bar Assn.’s Lawyer Referral Service at (714) 835-8811.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., adjunct professor, Western State University College of Law

Question: My wife was in an accident. She was employed as a registered nurse in a surgical center. The accident occurred in February and she has been disabled since then, although she will be able to go back to work this month. However, during the time she was off her job was terminated. Is that proper procedure?

--T.W.

Answer: An employer generally has no obligation to hold an employee’s job during his or her disability. If the employer is an “at will” employee, i.e. can be terminated without cause, then the employer is free to terminate the position at any time. If, however, the employer-employee relationship is one where termination can only be for “cause” then it is necessary to inquire as to the reasons for the job termination. Poor performance, misconduct, absenteeism, inability to perform the job, financial distress and other business reasons would constitute “cause.”

In any case, termination because of discrimination based upon race, color, gender, religion, national origin, age and disability where the person otherwise would be able to perform the job with reasonable accommodation could be considered illegal. Whether or not her termination was proper requires asking the employer the reason for the termination.

--Thomas M. Apke, attorney, professor of business law, Cal State Fullerton

Question: My husband works for a large company that makes its employees make up the time they take off for national holidays. Workers don’t get the choice of working the holiday either. How cheap can a company get? Have you heard this before?

--R.L., Los Alamitos

Answer: Companies are allowed to prohibit work on a national holiday, to pay compensation for the holiday and require employees to make up the time later. They are restricted however, as to how the work is to be made up.

The employer cannot require a non-exempt employee to work more than eight hours in any day or more than 40 hours in any week, along with other requirements, without paying appropriate overtime compensation.

Exempt employees have flexibility in work schedule requirements to meet productivity requirements of the employer. To the extent that an employer requires an exempt employee to make up time missed on one day on another or give credit on one day for excess time worked on another, the exempt status may be destroyed. As a result, the employer may have to comply with all of the rules for non-exempt status, including overtime.

If an employee is not able to make up the time on a Saturday or a Sunday because of religious beliefs, or family care commitments, the employer must reasonably accommodate such concerns to avoid legal liability.

--Don D. Sessions, employee rights attorney, Mission Viejo

Question: I read a story that suggested that even if you feel secure in your job that you should take additional training (college courses or vocational programs) to make yourself more marketable in the event of an unexpected layoff. How should you go about deciding what to study? And how can you afford it if your current employer doesn’t have a tuition reimbursement program?

--T.D., Sunset Beach

Answer: Continued self-improvement, whether it be personal improvement or job-skill development, is always a good idea. Increasing job-related skills or knowledge not only increases your marketability as a potential worker, but it can also enhance your value to your current employer (perhaps even making it less likely that you would be laid off).

In order to determine a course of study, do a personal “skill assessment.” Ask yourself: What skills do I lack, or which could use updating? (Computer skills are often a good area for training or retraining, given that technology and software evolves rapidly). What kinds of skills are critical for the performance of my job, and how can these be enhanced? How can I broaden myself to increase my present marketability as an employee?

In addition to evaluating your training needs, look into the types of training programs available through public institutions of higher learning, federally subsidized training programs and through professional and community groups.

Although continuing education through the regular programs offered by community colleges, the Cal State University and University of California systems costs money, higher education in California is still quite a bargain. Regular students in California state colleges and universities pay only a small portion of the cost of the education they receive. Extended education programs through the universities, although more costly, are still quite affordable, and if they enhance your work-related skills they are cost-effective in the long run.

--Ron Riggio, professor of industrial psychology, Cal State Fullerton

Question: My previous employer, which was a private company, made yearly contributions to an Employee Stock Ownership Program. I left the company last year and asked for a distribution to my new retirement program, since my last ESOP statement received in 1991 showed a significant value. However, I was told that the company had incurred significant debt and therefore the company--and my ESOP account--had little or no worth. Consequently, the ESOP administrator said that no new financial statements would be prepared.

When I contacted the Department of Labor’s pension benefits department, I was told that the government is unable to force distributions from such qualified retirement programs. Can a qualified retirement program like an ESOP really be manipulated by company owners?

--K.B., Irvine

Answer: No. The persons who operate an Employee Stock Ownership Plan are “fiduciaries,” which means that they must operate the plan solely for the benefit of plan participants. If fiduciaries manipulate or use an ESOP for any other purpose, or if they mismanage the ESOP, they can be held liable for any losses that results.

On the other hand, the fiduciaries of an ESOP normally would not be responsible for a loss that the plan incurs from mismanagement of the company itself that causes a loss in the value of the stock unless they imprudently failed to take steps that were within their power that would have minimized or prevented the loss. The Department of Labor, by the way, can bring lawsuits to recover ESOP benefits for participants. Because of limited resources, however, it rarely does.

--Michael A. Hood, attorney, Paul, Hastings, Janofsky & Walker