This section deals with what you need in order to respond to an unemployment claim involving a claimant who has resigned, i.e., left work voluntarily. In any such case, you need to show three main things. First, you need to show that the claimant left voluntarily while continued work was still available. Second, you should try to show that the claimant left for personal reasons not related to the work, or if the claimant left for work-related reasons, that a reasonable employee would not have quit under such circumstances. Third, if applicable, show that the claimant quit without affording you an opportunity to address whatever problem allegedly led to the resignation. In the vast majority of cases, employers will be able to prove these things with documentation and with firsthand testimony from witnesses who have direct, personal knowledge of the events in question. Although the claimant has the burden of proving "good cause connected with the work" for quitting, in real life employers still have to be ready to rebut whatever justifications the claimant tries to give for leaving when he did. This is especially the case when an employee quits because of a reprimand or some other adverse job action. In such a situation, the employer's evidence will need to be basically the same as if the claimant had been discharged.
TWC defines "good cause" as being "such cause, connected with the work, as would lead a reasonable employee who is otherwise interested in remaining employed to nonetheless leave the job." As noted in the preceding paragraph, resignation cases involve a kind of "reasonableness" standard: would a reasonable employee have left for such a reason?
As with claims and appeals involving a discharged claimant, there are some words and phrases an employer should try not to use in a claim response, appeal letter, or testimony at a hearing, unless remaining truthful makes it necessary to do so (above all, tell what really happened - losing a case is preferable to giving false statements). The problem is that many of the claim examiners, hearing officers, and legal staff at TWC think less of an employer's case when they see or hear the following because such terms sometimes confuse the issues and obscure the true problems the employer is trying to get across. Put another way, certain terms mean one thing to many employers, but quite another thing entirely to agency employees who rule on cases:
It is best to avoid such explanations (again, unless telling the truth dictates otherwise) if the company really wants to defend against the claim. Keep in mind that it is best for the case to be regarded as a resignation situation, since the claimant will then have the burden of proving good cause connected with the work for resigning when he did. If the company uses terminology like that in the sentences shown above, it runs the risk that the claim examiner or hearing officer will think that the claimant was really fired, in which case the burden of proof shifts heavily and inexorably toward the employer, and if it cannot prove misconduct on the claimant's part, the case will be unwinnable.
Ironically, a lot of employers make unnecessary trouble for themselves in resignation cases by discussing things normally associated with discharges or terminations for cause. Thus, the problematic terms are basically the same in resignation cases as they are for termination cases, the main difference being that in resignation cases, not only can such terminology knock the case into the misconduct arena where the employer has the burden of proof, but it also tends to make a misconduct argument unwinnable. Here is that list again, this time in the context of statements about resignation:
Inability: as in "we needed the claimant's resignation because of inability to do the job", "the claimant was incompetent", "the claimant never performed the work satisfactorily", "he seemed unable to grasp the job", or "she was unable to follow our rules". First, why would the company be talking about the claimant's abilities if she quit? Poor work performance is really only an issue in discharge cases. Second, if it was really a case of discharge (i.e., the claimant was pressured to quit), remember that inability by itself is not misconduct. An employer has to show that the claimant was failing to do his or her best and was warned that discharge could result.
Accumulation: as in "we wanted the claimant's resignation for an accumulation of things". Again, why would the company be talking about the claimant's conduct or work performance if it were really a resignation situation? Those are really only issues for discharge cases. Second, if it was really a case of discharge (i.e., the claimant was pressured to quit), keep in mind that the "shotgun approach" almost never works. Concentrate on the final incident that caused the company to demand the claimant's resignation - that's what TWC and the courts do.
Mutual agreement: as in "she left by mutual agreement". Most TWC employees think "discharge" when they hear that. If the claimant had no choice but to leave when she did, she was discharged, and the employer will have to prove misconduct.
Disloyalty: be careful about describing an employee who resigned as disloyal, since that is usually a justification given by employers for firing an employee. Further, if the claimant's lack of loyalty was somehow related to the reason she quit, the employer needs to be more specific than that. Stating that someone was "disloyal", without giving specifics, makes many TWC employees think that the discharge simply resulted from hurt feelings or a personality dispute.
Poor attitude: again, an employer needs to be more specific, and to be careful about how it brings up "poor attitude" in a resignation case. Such a problem is often cited by employers in discharge cases. If the company talks about the claimant's poor attitude, it would be best to put it in the context of speculation as to why she was unhappy enough to quit. If TWC ends up thinking it was a discharge case, keep in mind that it is not misconduct to fail to be happy at work. Show how the claimant was failing to get along with coworkers or customers, how that was affecting her performance and the performance of others, and how her actions were within her power to control.
Once again, avoiding misunderstandings caused by using the wrong terminology is essential. Employers must reckon with the reality that claim examiners, hearing officers, and agency legal staff have their own terminology that means very specific things to them. Employers need to watch out for themselves in this area and make sure that they are crystal-clear in explaining how the claimant was at fault in the work separation and how a reasonable employee would not have quit the job for the reason involved.
If someone tells you they are looking for other work, or will be interviewing with other companies, be patient! Unless there is a compelling reason to discharge the person sooner, simply wait for the employee to resign. Remember, the company still has the right to insist that even a soon-to-be former employee turn in good work performance and follow normal work rules and standards. Just let things take their natural course, and assuming the employee resigns to take another job, your company is fairly certain of never having to worry about a chargeback from a UI claim filed by the former employee. Being patient has another potential advantage: the employee might actually improve to the point where your company would want to keep him or her. That would be a win-win proposition for all concerned. For two TWC precedent cases that show why patience and forbearance are so important, see Appeals No. 87-7940-10-051187 and 87-13371-10-073187 (section MC 135.00, Appeals Policy and Precedent Manual; downloadable at //twc.texas.gov/files/jobseekers/appeals-policy-precedent-manual.pdf (PDF)).