In this year of plant closings, downsizings and layoffs at record levels, employers and employees alike can be forgiven a keen interest in the potential for an award of unemployment compensation benefits. The good news for most employees facing layoffs in these difficult times is that they will generally be entitled to government-backed unemployment compensation benefits if they lose their jobs through no fault of their own, or, more precisely, for reasons other than “willful misconduct.”
One of the thornier questions of unemployment compensation law is whether an employee might be entitled to receive unemployment compensation benefits not when he is laid off, but when he quits his job. One might well ask why one would quit a job during a recession in the first place, when “any work is good work if you can get it.” But in a time of massive economic dislocation, when two wage-earner households have long been the norm, many families are placed in the difficult position of having to relocate to save the higher paying job or otherwise having to choose one of their jobs over the other.
Generally speaking, an employee is entitled to receive unemployment compensation benefits if he or she resigns a position of employment for “necessitous and compelling” reasons. Under Pennsylvania law, a “cause of a necessitous and compelling nature” exists where there are circumstances that force one to terminate his employment that are real and substantial and would compel a reasonable person under those circumstances to act in the same manner. As with many legal standards, this definition of “necessitous and compelling” is vague, and its application in any given case is highly sensitive to the particular facts of the case.
For instance, an oft-asked question is whether an employee has a right to quit a job and receive unemployment compensation benefits if she or he has been repeatedly harassed at work. The answer is an unequivocal “it depends.” If the “harassment” is nothing more than a supervisor continually scolding an employee about the quality of his work, then unless those scoldings were in the form of highly abusive language, the acts of the employer would not normally be a necessitous and compelling reason for quitting a job. However, if the harassment is on-going and clear-cut sexual harassment which continues even after the employee has made the appropriate complaints up the chain of command, then the employee typically will have a necessitous and compelling reason for resigning his employment.
Many other cases will fall somewhere between those two extremes, and entitlement to unemployment compensation benefits will be highly dependent on just how intolerable the work environment is, and exactly what changes or accommodations the employee requested in order to rectify the problem and salvage the job. As another example, consider an employee who has a severe yet unusual allergic reaction to some chemical or other substance in the workplace. It may be that there is nothing the employer can do to eliminate or significantly reduce the presence of that allergen, but the employee will generally be required to make the allergic reaction known and then work with the employer to explore avenues for resolving or reducing the allergic reaction before he quits the job. If the employee does not do so, then the employee’s failure to take steps to avoid a resignation from employment will generally be grounds for denying unemployment compensation benefits, even if nothing could have been done to eliminate the allergic reaction.
But what of the situation where the reason for quitting a job has nothing to do with the job itself, but rather with other circumstances in the employee’s life or family? The general standard to be met for showing a necessitous and compelling cause for voluntary job termination in these cases is that: (1) the claimant must establish that circumstances existed which produced real and substantial pressure to terminate the claimant’s employment, (2) like circumstances would compel a reasonable person to act in the same manner, (3) the claimant acted with ordinary common sense, and (4) the claimant made a reasonable effort to preserve his or her employment. Procito v. Unemployment Compensation Board of Review, 945 A.2d 261 (Pa.Cmwlth. 2008).
The issue often arises in the context of one spouse leaving employment to follow another spouse who has taken a job elsewhere. The specific standard to show necessitous and compelling cause for leaving employment to follow a spouse is: (1) the spouse elected to move for reasons beyond his or her control, and the decision to move was reasonable and made in good faith, and (2) the couple would face an economic hardship in maintaining two residences or the move has resulted in an insurmountable commuting problem. Glen Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561 (Pa.Cmwlth. 1995). The Pennsylvania courts have held that this “following the spouse” rule only applies to legally married couples, and not to unmarried couples whether they be opposite-sex or same-sex couples. See Procito. Even where the couple is married, the reason for the spouse’s relocation must be beyond the spouse’s control and not simply a matter of personal preference. As a result, a decision to move out of state to seek work in a less stressful environment and to be near one’s family is not a necessitous and compelling reason for one spouse to leave one’s employment or for the other spouse to follow. Id.
The question of “necessitous and compelling” reasons to quit employment also arises when a working parent finds herself unable to juggle both work and child care responsibilities. To prove a necessitous and compelling reason to quit in child care cases, the worker must establish that he or she exhausted all other alternative child care arrangements, such as a concerted effort to find another baby-sitter or to find a suitable day care center. Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa. Cmwlth. 2000). In Beachem, the court ruled that a necessitous and compelling reason for quitting employment existed where a worker voluntarily terminated his employment to care for his emotionally and behaviorally disturbed child, when although the child had adequate supervision living with his grandmother while the worker had worked in Alabama, the child also needed, day in and day out, the psychological support that only the claimant could provide.
However, any worker considering leaving a job to care for a child, and counting on unemployment compensation benefits to provide a steady income for the standard six-month benefit period, or for any benefit extension period which Congress might allow, should proceed very, very carefully. Unemployment compensation referees are likely to view such cases skeptically, so that the employee should be prepared to establish through documentary evidence and live testimony that the employee exhausted all possible child care alternatives before taking the radical step of quitting his or her job.
As noted above, the determination of whether an employee has a necessitous and compelling reason to quit his or her employment, and thereby become entitled to unemployment compensation benefits, is highly fact-sensitive. Each and every case will be decided on its own peculiar facts. Anyone considering a resignation of employment in this job market is well-advised to consult with his or her legal counsel before doing so.