While it is best practice for an employee to provide notice of their intent to resign, as an employer you know that this is not always the case. There may be times when an employee resigns without notice, walks off the job, or simply stops showing up for work.
It is widely understood that voluntary resignations do not typically afford an individual unemployment benefits. However, what happens when someone just stops showing up for work and doesn’t notify your organization?
In these types of instances, any unemployment case becomes much more complex. As a result, it is important to understand the nuances of these types of situations and how to best handle them to provide your organization with the best opportunity to receive a favorable outcome in any unemployment cases.
Who is the Separating Party?
Most employers have policies in place that state an employee who fails to call in or report to work (also sometimes called job abandonment or a no call, no show) is considered to have voluntarily resigned, though exact policies vary. One employer might consider one no call, no show a resignation, while another may allow for two or three days of absence without notice before the employee is considered to have abandoned their job and, therefore, resigned. In another instance still, the employer might consider the claimant discharged after a certain number of undocumented absences.
While employers often plan for this eventuality, most state workforce agencies do not. There are very few state provisions that account for job abandonment or provide specific details on how many days of uncommunicated absence are needed for an individual to have been considered to have voluntarily left their job.
Instead, most state laws and precedent cases rely strongly on who was considered the separating party, and the claimant’s intent when determining benefit eligibility.
When is the employee considered the separating party?
If the employee never attempts to return to work and never attempts to contact the employer, the state workforce agency will consider the employee to have voluntarily resigned. There must be the inference or indication that the employee did not intend to return to work, and lack of communication or an attempt to return to work provides the needed evidence.
When is the employer considered the separating party?
Alternatively, if the claimant does contact the employer after being a no call, no show for one or more days, but is told that they were considered to have abandoned their job, most state workforce agencies will rule that the employer is the separating party. When the employer is the separating party, the state will consider the claimant discharged, at which time the employer must demonstrate misconduct as is the case with all discharge cases.
The Misconduct Provision
In situations where the misconduct provision is applied, a case of failing to call in or reporting to work is usually an easy to prove. Every state has precedent cases that consider absence without notification to the employer to be misconduct.
Historically, misconduct is more consistently found when the employer’s policy held two or more days of no call, no show by the employee.
Furthermore, 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 occurred before ruling the separation as misconduct.
The important thing to note is that to pursue a job abandonment case, it is recommended to have a separate and distinct policy around no call, no shows.
Best Practices
It is best to develop a procedure for investigating no call, no shows. On the first no call, no show, reach out to the employee for an explanation. Continue to reach out on each no call, no show day, and document any attempts at communicating with the employee. When the employee has reached the point of termination, send them a letter explaining the termination and again request that they contact you if there are circumstances that could affect the termination action.
Extenuating Circumstances
As with any unemployment issue, there can be other factors that change a ruling. The most common issue in job abandonment cases is the claimant’s ability to contact the employer.
There may be extenuating circumstances that prevent the employee from contacting you, such as a medical emergency, incarceration, or some other form of crisis that prevents the employee from reporting to work or making contact. If an employee can prove that there was something preventing them from making contact and that there was no alternative to get notification to the employer, the state workforce agency 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
Considerations and Documentation
As you move forward with termination paperwork associated with a job abandonment, below are several helpful tips to ensure your process, information, and documentation ensure a solid case for potential unemployment claims.
- Ensure you are following your policies consistently for all employees.
- Record the dates/shifts that the employee was a no call, no show.
- Document any attempts, or lack thereof, the claimant made to contact you after they were considered to have abandoned the job. These details can support the difference between a resignation and a discharge.
- 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.
About Us
For more than 40 years, 501(c) Services has been a leader in offering solutions for unemployment costs, claims management, and HR support to nonprofit organizations. Two of our most popular programs are the 501(c) Agencies Trust and 501(c) HR Services. We understand the importance of compliance and accuracy and are committed to providing our clients with customized plans that fit their needs.
Contact us today to see if your organization could benefit from our services.
Are you already working with us and need assistance with an HR or unemployment issue? Contact us here.
The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources. Some information was provided by our friend, Darby Gibson, Client Marketing & Insights Specialist, at Thomas & Company.
