Considered fired or resignation?

[moonhaawk]

What is the name of your state (only U.S. law)? AZ

My employer wants me to change my scheduled hours of work. I cannot meet the new schedule because of family obligations. They want me to give an answer tomorrow. If I do not commit to it, would I be eligible for unemployment? I am not able to meet the schedule requirements -- would this be considered them firing me, or me resigning?

Thank you.

 

[OHRoadwarrior]

Your UI should be declined unless the employer OK's it in the way they respond. Then you would need to appeal.

 

[commentator]

In MOST cases, quitting your job for a personal reason is not an approvable unemployment claim. That your employer asked you to work a different set of hours might be considered forcing a quit, if that employer had been giving you the hours you needed for a long time and was fully aware of the situation which necessitated your not being able to work the other hours, and chose deliberately to force a quit by making you change shifts.

But there's also the concept that the employer may change your hours as to meet their business needs without regard for your personal schedule.

It's a toss up. If you go in and tell them you cannot change your hours, and they say you're fired then, file a claim for unemployment immediately. Describe the situation, including exactly what you were told. Your chances of being approved for benefits are not going to be especially good in AZ, but it's something you should try but not count on.

How drastically are they changing your scheduled hours of work? Is it, really, do you perceive it is being done to get rid of you? To force you to quit? Or is it being done because they need someone to work these hours and they'd work better for the business?

Think long and hard, if you have a good relationship with your employer and you're not being singled out to be gotten rid of, about trying to work something out, compromise, figure out a new family structure or child care arrangement. Employers have a right to expect people to work the shifts they need them to work for the good of the business.

And even under any circumstances, to qualify for any unemployment you need to be reasonably available for any days hours and shifts. You can't go file for unemployment and tell them you are available for work, but you must have a job that meets this requirement for you to pick up your child from daycare at this time or that one, or accommodates YOUR personal schedule to a " t " or else you can't work there. That doesn't mean you are available for work.

 

[Chyvan]

If I do not commit to it, would I be eligible for unemployment? I am not able to meet the schedule requirements -- would this be considered them firing me, or me resigning?

You've got a decent shot at getting UI, but the big factors are just how big is this change in hours, what is your occupation, and what's a prevailing schedule. It's going to get treated as a quit, but make your life easier and tell DES that you were fired, and not another word. You need to see what your employer has to say so that you present your appeal correctly if it goes that far. Make absolutely sure that you have proof (preferably with an email) that you tried to get your employer to leave your schedule alone or that you suggested an alternate schedule that you could live with.

Then let's reference the Arizona Administrative Code at http://apps.azsos.gov/public_services/Title_06/6-03.pdf

You can work with R6-3-50155 Domestic Circumstances B. With good cause in connection with the work if 2. The hours of work or place of employer were changed

You also might be able to work with something in R6-3-50450.

Just know that while you might get a nondisqualifying separation, it's going to raise able and available issues so you still might end up getting denied benefits if your schedule is so rigid that it's determined that you aren't available to a substantial field of employment.

In all probability, this is going to get treated as a quit, and you have to prove everything so make sure that before you leave work you have proof of:

What your schedule currently is

What the schedule is going to be

That you tried to get your employer to work with you.

Without proof of these items, at an appeal hearing your employer can say, "we never said we were changing her schedule," "that wasn't her schedule," or "this is the first we're hearing of it," and you will lose.

 

[commentator]

Excuse me, but I believe we are advising the claimant to file a claim, and possibly lie, and then give them no further information. Yep, that's what it sounds like. And be sure you quote the law regarding domestic circumstances to the appeals officer in the appeals hearing, after your initial denial, too.

You do not have a decent shot chance of being approved for unemployment unless you can show that this was done to get you to quit, specifically. And even then it's iffy. Doesn't make a rats butt what the employer says about it. You're not "fighting" or arguing or rebutting what they say, you are telling the truth exactly related to your situation. That is what you need to do and what you are expected to do.

Even if you draw it out for the three or four or five weeks it takes for you to get initially denied and then have a hearing and try to hash it out with them then and argue smartly against what your employer has given as the reason for your no longer working there. Even if you don't get pulled out because you are unavailable for work due to days hours and shifts. Or that you somehow manage to file the intial claim and don't tell the system what happened, and thus you fail to mention that you are not available for certain days hours and shifts and they don't deal with that immediately, and it comes up after you have already certified several times saying you are, and you accidentally get overpaid, or you are disqualified and it appears you've lied on your application about availability issues.

 

[Chyvan]

Excuse me, but I believe we are advising the claimant to file a claim, and possibly lie, and then give them no further information. Yep, that's what it sounds like.

Not really a lie. When your employer in AZ takes away the job that you HAD, and CHANGES things, and offers you something you don't really want, that's a discharge and a new offer of work. I know because I lived it. I'm quite confident I'd have had a much earlier success had I gone down the "discharged" path rather than trying to argue a "good cause" quit, and in the final analysis, it was determined that I was fired anyway. My benefits all hinged on whether the new job was suitable. In this case, we're talking about my state, and not TN.

And be sure you quote the law regarding domestic circumstances to the appeals officer in the appeals hearing, after your initial denial, too.

Not necessary to quote the regulations. Most of the judges already know them, but they are instructional on what evidence the claimant needs to bring to the table. All the pieces need to be there. The only time you need to quote the law is if the ALJ uses the wrong one and you need to take it to the board, and even then, you can just use the section numbers, they'll look them up.

You do not have a decent shot chance of being approved for unemployment unless you can show that this was done to get you to quit, specifically. And even then it's iffy.

My state doesn't care about "forcing a quit." If the new terms and conditions render the job unsuitable then the quit was for good cause, or in the alternate, you were fired, and the new job was unsuitable, and you didn't have to accept it.

Even if you draw it out for the three or four or five weeks it takes for you to get initially denied and then have a hearing and try to hash it out with them then and argue smartly against what your employer has given as the reason for your no longer working there. Even if you don't get pulled out because you are unavailable for work due to days hours and shifts. Or that you don't tell the system what happened, and you fail to mention that you are not available for certain days hours and shifts after you have already certified several times saying you are, and you accidentally get overpaid, or you are disqualified and it appears you've lied on your application about availability.

You're jumping the gun. For all you know she had an 8 to 5 job, and the employer wants her to start coming in at 5:00 am. She might very well be "able and available" within the meaning of the rules, and that doesn't mean that you have to be available 24 x 7, but to a substantial field of employment.

 

[commentator]

In every state the unemployment program must strike a balance between the claimant who wants to be approved to draw unemployment and the employer who wants to operate the business to the best possible advantage and profit and to avoid paying in as much of their unemployment taxes as they can. In each state there is the presumption that the employer has the right to set days hours and shifts for the employees to meet the needs to the business, not for the convenience of the employee.

There are always going to be employees who think they have a complete right before God and the state of whatever to their particular hours because they've got to pick up junior at day care at 2:30, it's just not convenient to find anyone else to do it and they demand to do so, and up to now, the employer has allowed them to work these hours. Even if Arizona allows for leaving the job for a compelling personal reason, the person must show that they made a reasonable effort to solve the problem without quitting to make it a compelling reason.

There is also the understanding, that no matter whether they use a particular term or not, (constructive discharge is sometimes used) the employer may try to force out a particular employee by arbitrarily changing their days, hours and shifts of work, substantially lowering their pay or changing their job responsibilities. In best practice according to Federal law, the state's system strives to strike a balance between consideration for the claimant and consideration for the employer. This is about the only place in labor law that this happens, or that anyone shows any consideration for the employee.

Each case is individual. As has been pointed out, we do not know the particulars of this situation. When a claim is being taken and the claimant says they were discharged (whether they were actually told they were or not) and is willing to provide no further information, I am mystified by how this is going to help the claimant in any state unemployment system. I do not see this action as a general principle working well for people filing claims. Why would this enable the claim to be decided more appropriately, make the claimant the more believable party, work better for the individual, or deal more efficiently and correctly under law with the primary issues surrounding the termination or quit?

 

[Chyvan]

In each state there is the presumption that the employer has the right to set days hours and shifts for the employees to meet the needs to the business, not for the convenience of the employee.

I've posted these links before you still act like they don't exist. https://wdr.doleta.gov/directives/attach/UIPL41-98.cfm and http://www.ows.doleta.gov/dmstree/uipl/uipl_pre75/uipl_984.htm

There's not one word in either that says that the employer's rights to set hours trumps an employee's rights to the "prevailing condition of work." The employer is free to hire someone at less than prevailing, and that's ok when the employee accepts it, and the employee is stuck with it. However, if the employee is working under "prevailing conditions" and the employer CHANGES it to something that isn't, the employee can very well get UI when they refuse it.

I used those documents with the board and went on a one-woman crusade with the Appeals Office and DES, so at this point, they aren't some long forgotten Federal requirements.

Even if Arizona allows for leaving the job for a compelling personal reason, the person must show that they made a reasonable effort to solve the problem without quitting to make it a compelling reason.

Or the claimant just needs to argue the "new" job wasn't suitable or substantially less favorable than prevailing. It works, and I know because I did it. The wonderful thing about "new work" is that I was relieved of the obligation to make any effort to resolve the problem.

When a claim is being taken and the claimant says they were discharged (whether they were actually told they were or not) and is willing to provide no further information, I am mystified by how this is going to help the claimant in any state unemployment system.

Just worked on a different forum I post on. Woman worked at a bank. Had issues with her employee account. Went ballistic with one of the bank's CSRs (a little too misconducty sounding to me). Fortunately, she posted BEFORE she applied. I told her to follow my technique. She's collecting UI right now. Most likely because the bank didn't respond.

 

[Zigner]

She's collecting UI right now. Most likely because the bank didn't respond.

In other words, it had nothing at all to do with your advice.

 

[Chyvan]

In other words, it had nothing at all to do with your advice.

Sure it did. Had she told the UI worker about her argument with the other bank employee, I'm very confident that she'd have been denied even when the employer had nothing to say. It also proves that not participating does not result in an automatic denial.

 

[Zigner]

Sure it did. Had she told the UI worker about her argument with the other bank employee, I'm very confident that she'd have been denied even when the employer had nothing to say. It also proves that not participating does not result in an automatic denial.

The worker you are referring to DID participate (by filing the claim). It was the employer that didn't participate in the process.

 

[Chyvan]

The worker you are referring to DID participate (by filing the claim).

But she didn't answer the "why were you fired" question, and that's exactly what I tell people that are fired to do especially when the circumstances just sound bad.

 

[commentator]

From the information on how to file for unemployment insurance in the state of Arizona.

What Information and Documents Must You Provide?
It is very important that if DES asks you for information and documents,
that you give DES the information and documents, if you have it.
If DES decides you are withholding information or documents, DES can find
your claim “invalid” until the information is provided. If you cannot provide the
information and documents, be sure to let DES know the reason.

And your reason is that somebody on the internet told me not to tell you anything and that I could get approved that way. Excellent!

"It works, and I know because I did it." Okay.

 

[cbg]

Chyvan, even you have better brains that this. THINK!

By your own admission, the most likely reason she got the benefits approved is because the employer didn't respond.

If she got them because the employer didn't respond, it wasn't because she clammed up and refused to give the UI office information. You just said it yourself - it's because the EMPLOYER didn't give them any information.

 

[Chyvan]

From the information on how to file for unemployment insurance in the state of Arizona.

What Information and Documents Must You Provide?
It is very important that if DES asks you for information and documents,
that you give DES the information and documents, if you have it.
If DES decides you are withholding information or documents, DES can find
your claim “invalid” until the information is provided. If you cannot provide the
information and documents, be sure to let DES know the reason.

And your reason is that somebody on the internet told me not to tell you anything and that I could get approved that way. Excellent!

"It works, and I know because I did it." Okay.

No, the reason would be "fired," don't fill out the questionnaire that DES sends, and don't take their call. It's that easy.

the most likely reason she got the benefits approved is because the employer didn't respond.

If she got them because the employer didn't respond, it wasn't because she clammed up and refused to give the UI office information.

You know perfectly well that a claimant can get denied by what comes out of their own mouth. Did you already forget about Robles? It's because she said nothing AND because the employer didn't respond. The employer could have written "fired for misconduct," and for most deputies that would have been enough, but at least the claimant would have had a good shot on appeal. We're talking about EDD workers that are wrong 55% of the time.