Understanding State Perspectives and the Burden of Proof
We’ve all heard about “The Great Resignation.” In fact, many of you may have experienced it within your organization. Employees are leaving for various reasons. This month, we want to explore one of the ways that employees are saying (or not saying) goodbye. Job abandonment is an unfortunate reality that employers must deal with, and the details also have an impact on the unemployment process.
We will focus on how the states will view job abandonment and who has the burden of proof to help you get the best results in cases where the employee is a “no call, no show” for their shifts.
Who is the Moving Party?
Most employers have policies in place that state an employee who is absent without notice (no call, no show) is considered to have voluntarily resigned. Depending upon the employer, the details of the policy may vary. One employer might consider one incident of no call, no show a quit while another may allow for two or three days of absences without notice before the employee is considered to have voluntarily abandoned their job by company policy.
In contrast, most state unemployment agencies do not have a job abandonment provision or a law covering the minimum number of days an employee must fail to call in or report to work to constitute a quit. Most states’ laws and precedent cases rely strongly on who was the “moving party” in the separation and the claimant’s intent in determining these cases as a quit.
When is the employee considered to be the moving party?
If the employee never attempts to return to work and never attempts to contact the employer at any point, the state workforce agencies consider the employee to have voluntarily quit. There must be the inference or indication that the employee did not intend to return to work.
When is the employer considered to be the moving party?
If the claimant does contact the employer after being a no call, no show for one or more days, and is told that they were considered to have abandoned their job, most unemployment agencies rule that the employer is the moving party, the claimant has been discharged, and the misconduct provision of the unemployment law is considered.
In the situations where the misconduct provision is applied, a case of failing to call in or report to work is usually an easy one to prove. Every state has precedent cases that consider absence without notification to the employer to be misconduct.
The key to success in these cases is showing that the employer has an established, uniformly enforced policy of how many days of no call, no show is considered job abandonment and that the employee was made aware of the policy.
In reviewing the laws and precedent cases throughout the states, misconduct was more consistently found when the employer’s policy held two or more days of no call, no show by the employee. Most states will consider the employee’s disciplinary record to see if prior warnings were issued for attendance or previous no call, no show incidents before ruling misconduct. The important thing to note is that to pursue a job abandonment case, you should have a separate and distinct policy around no call, no show.
Burden of Proof
As with any unemployment issue, there can be other factors that change the states rulings. The most common issue in job abandonment cases is the claimant’s ability to contact the employer. If an employee can prove that there was an issue that prohibited them from contacting the employer and that there was no alternative to get notification to the employer, the unemployment office may not find misconduct. Similarly, cases in which the employee is unable to contact the employer, but has another party notify the employer of the absence may not be considered a no call, no show by the state agency.
As you complete the termination paperwork, here are some helpful steps when dealing with job abandonment separations:
- Record the dates/shifts that the employee was a no call, no show.
- Ensure you are following your policies consistently for all employees.
- Document attempts, or lack thereof, the claimant made to contact the employer after they were considered to have abandoned the job. These details can support the difference between a resignation and a discharge from the states’ perspective.
- Document your attempts to reach out to the claimant as well. This can help demonstrate that you made attempts to initiate a conversation with the claimant and they did not respond to your requests for contact.
Best Practices
Not all cases of “no call, no show” are job abandonment by the employee. There may be extenuating circumstances that prevent the employee from contacting their employer. This could be a medical emergency, incarceration, or some other form of crisis that prevents the employee from reporting to work and making contact.
A best practice is to develop a procedure for investigating no call, no show situations. When a no call, no show occurs, the employer should reach out to the employee for an explanation on the first day. Continue to reach out on each no call, no show day and document each attempt at getting a response from the employee. When they have reached the point of termination, send the employee a letter explaining the termination and again request that the employee contact you if there are circumstances that could change the termination action.
Provided by our friend, Michele Heckmann, Director of Customer Insights, at Thomas & Company.
