With a significant number of federal employees facing separation due to Reduction in Force (RIF), a mass firing of probationary employees, removals for refusal to accept a directed reassignment, or resignations under OPM’s deferred resignation program (previously analyzed in this blog), questions have arisen as to what impacts those situations would have on the employees’ ability to claim unemployment benefits, which bear some examination.
As a preliminary note, unemployment insurance benefits vary from state to state, and so an employee should examine the rules from their own states. Unemployment compensation programs for the states where the offices of Gilbert Employment Law (GEL) are located, and their neighboring jurisdictions, can be found at the following websites:
District of Columbia: https://does.dc.gov/page/unemployment-compensation
Hawaii: https://labor.hawaii.gov/ui/
Maryland: https://labor.maryland.gov/employment/claimfaq.shtml
Nevada: https://ui.nv.gov/
Virginia: https://www.vec.virginia.gov/unemployment
The U.S. Department of Labor also provides a searchable central listing of state and territorial unemployment programs, available at https://www.careeronestop.org/LocalHelp/UnemploymentBenefits/find-unemployment-benefits.aspx.
To illustrate some of the relevant legal issues, this analysis will apply the unemployment laws of Maryland. Laws in other jurisdictions may vary.
One of the requirements for unemployment is that the applicant have been discharged by their employer, rather than having voluntarily resigned. Based on this criterion, challenges are anticipated for applicants who are resigning from federal service under the auspices of the deferred retirement program. Resignation under other circumstances rather than awaiting a removal (for example, resignation due to directed geographic reassignment outside of commuting area) could potentially qualify as a ‘good cause’ resignation that would not bar receiving unemployment, but the standard is highly fact-specific and may need to litigated in order to establish unemployment benefits eligibility.
Another requirement is that the applicant have not been discharged for ‘misconduct’ or ‘gross misconduct’ (terms defined in the unemployment statute, regulations and precedent). Employees laid off in an ordinary RIF thus qualify for possible benefits. Concerning those probationers who have been separated based on nonspecific allegations about performance (as has been reported in the press), such general allegations likely should not disqualify the applicant from receiving unemployment benefits.
The fact that an applicant was separated during a probationary or trial period is not itself disqualifying from unemployment eligibility. However, unemployment programs have a requirement for a minimum duration of employment during the time period prior to filing the claim in order to be eligible for unemployment benefits. If an applicant had not worked long enough in the time period prior to their separation, they may not necessarily be eligible for unemployment benefits.
Applicants who are receiving retirement annuities or severance pay may see deductions in their unemployment compensation benefits, and such payments need to be reported to the unemployment program.
Removal for refusal to accept a directed geographic reassignment outside of one’s commuting area is generally not ‘misconduct’ or ‘gross misconduct’ that would disqualify an applicant from unemployment benefits.
Of course, it is necessary for the applicant to meet the other eligibility requirements for unemployment benefits in order to qualify. Continued eligibility requires the applicant to: (a) be able, available, and actively seeking work; (b) report gross earnings from wages, self-employment income, commission payments, tips, odd jobs, etc. in the week such is earned; and (c) accept suitable work, when it is offered. If the applicant refuses an offer of work, the unemployment agency must determine if the job was suitable and whether the applicant refused the job offer with good cause. The applicant also has to actively apply for unemployment benefits, and to meet the other reporting requirements of the program. Ultimately, eligibility for unemployment insurance cannot be determined until a claim is actually filed.
If you are a federal employee affected by ongoing RIFs, mass probationer terminations, directed reassignments or the deferred resignation program, and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.