Appellate Division Holds that a Worker Who Quits His/her Job When Discharge is Imminent May Still be

By way of background, when an employee leaves his/her job voluntarily and for personal reasons, he/she is disqualified from receiving unemployment benefits. However, the Appellate Division in Cottman v. Bd. of Review, Dkt. No. A-1908-16T2, 2018 N.J. Super. LEXIS 52 (App. Div. March 29, 2018) clarified that rule of law, holding that “when an employee knows that he or she is about to be fired, the employee may quit without becoming ineligible.” In Cottman, a residential counselor at a group home was assigned to the overnight shift when her babysitter quit unexpectedly. She had three children, all with special needs, who required supervision. Her employer had a policy that required her to find a replacement to cover her shift. She called everyone on her contact list, but could not find anyone who was available to cover for her. She went to her supervisor and advised of the situation, and the supervisor told her that if she did not come in for her shift, she might be fired. As a result, to avoid termination, the residential counselor resigned. When she applied for unemployment benefits, her application was denied by the Department of Labor and Workforce Development’s Board of Review on the grounds that she left work voluntarily and without good cause attributable to her work. The residential counselor, representing herself, appealed to the Appellate Division. And she won. More specifically, the Appellate Division reversed the denial of her benefits, noting that had the residential counselor been terminated instead of resigning, she would have been entitled to the benefits. Thus, an employee does not need to wait to be fired when discharge is imminent, since most employees would prefer quitting to being fired. As a result, an employee who quits when facing imminent discharge is not precluded from received unemployment benefits on that basis. The Appellate Division noted that, under normal circumstances, leaving work for purposes of caring for children is “not good cause” for receiving unemployment compensation benefits. However, since the residential counselor was forced to quit because she was under the clear impression that she would be fired unless she appeared for work on the day that her children would otherwise have been left without supervision, she was not precluded from receiving benefits. Employees should note that whether discharge is imminent is a fact-sensitive inquiry. Thus, if an employee does resign and it is ultimately determined that he/she was not facing imminent discharge, the employee will remain ineligible for unemployment compensation benefits.

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