Bruce Godfrey

Sometimes clients and prospective clients ask me whether they should have quit their job rather than stay on until getting fired.  Usually this query comes after a client has already quit her job, so the question is merely philosophical, in that the quit has been done.

Generally, in Maryland, it is a lot riskier for unemployment benefits to quit a job than to stay and get fired.  Maryland does recognize categories of “good cause” and the somewhat-less-meritorious “valid circumstances” for certain types of quits.  However, in voluntary quit cases the employee/claimant has the burden of proof, whereas in misconduct cases management has the burden of proof to show a deviation from the communicated standards of the workplace or from what an employer has the right to expect reasonably in general.

I can only imagine two scenarios where it might possibly make sense from an unemployment insurance basis to choose to quit voluntarily rather than to risk a firing for misconduct.  The first is where the work has become simply untenable, i.e. in the case of a relocation 50+ miles away or perhaps an order from a supervisor to do something clearly unethical, fraudulent or illegal. The second  might be a rare case where the worker might have committed and then concealed relatively serious misconduct, and is seeking to quit when she has arguably perhaps valid circumstances for other grounds – BEFORE the misconduct is discovered.  I am not convinced I would recommend a quit even in this law-school-exam-style scenario.

In general, from a Maryland employment insurance perspective it is far safer and more prudent to stay on the job if at all possible.

Maryland is contemplating a substantial increase in the premiums that employers pay for unemployment insurance, due to the sharp increase in claims during this difficult economy.

A discussion of the basics of unemployment insurance payments might help those who are not familiar with the program.  There are two unemployment insurance taxes that Maryland employers pay for their workers: taxes paid to the Unemployment Insurance Division of Maryland’s Dept. of Labor, Licensing and Regulation and a smaller federal tax payable to the U.S. Treasury on IRS form 940.  The taxable “wage base” in MD for any tax year is a maximum of $8,500.00.  Employers pay a tax on each worker quarterly based on the wages earned, up to the maximum annual base.  The federal system is similar except the wage base is $7,000.00 and the federal rate is .8%, yielding a maximum liability of $56.00 per year per worker.

Under Maryland law, the rates charged to all employers must rise if it appears that the Fund holding the insurance benefits will or may exhaust.  Due to a lower wage base (fewer workers) and an increase in validated claims, the Fund has fallen under a risk of depletion.  According to published reports, Governor O’Malley is proposing rather sharp increases in the minimum and maximum rates, per published reports, but he is trying to find ways to mitigate the impact of these increases.

One of the challenges is that the workers most vulnerable in a bad economy are the ones whose employers will bear the worst burdens of the unemployment crisis itself.  I do not know whether I accept the propounded idea that the increase in unemployment premiums will in fact cause or exacerbate unemployment itself.  But seasonal, low-wage workers may only work part-year, and for multiple employers (i.e. falling within a new wage base each time.)  Low-wage, part-time workers spend more of their working time within the wage base, unlike a white-collar professional earning e.g. $5K/month, and are likely to be working in jobs and for employers with high turnover and therefore high rates of validated claims.  Construction workers are a good example: when the weather gets cold, contractors let many workers go.  When construction is down generally, workers get laid off, and file benefits, increasing the costs of hiring workers and lowering the profitability of each new worker to be hired, etc.  Even if unemployment premiums don’t meaningfully induce or extend unemployment itself, they definitely don’t help.

While this Law Office is by policy and philosophy pro-union, pro-labor and pro-worker, I have often wondered why employers do not more often notify employees more formally of the costs of their own hire.  While I can understand why employers might want to keep those costs secret as a matter of competitive intelligence, employees ought to know that their employers are in fact paying a surcharge of $X per year for worker’s comp, for unemployment insurance, for FICA matching.  I am surprised that conservative political activists have not demanded the economy-wide disclosure of some or all of these costs to employees for rhetorical purposes, either worker-by-worker or en masse.  I suspect that many employees don’t conceive that the employers actually have to write checks for these legally required benefits.  The general acknowledgement of these costs by workers, or at least the formal notification of these costs to workers, might go a long way to soothing relations between labor and management in some cases.

In general, someone who quits her employment voluntarily is ineligible for Maryland unemployment benefits until she earns back into eligibility through subsequent employment.  However, that rule does not tell the whole story.

Maryland recognizes two categories of mitigation (“valid circumstances”) or justification (“good cause”) for a voluntary quit.

“Valid circumstances” exist when:

(i) a substantial cause that is directly attributable to, arising from, or connected with conditions of employment or actions of the employing unit;
(ii) of such necessitous or compelling nature that the individual has no reasonable alternative other than leaving the employment; or
(iii) caused by the individual leaving employment to follow a spouse if:
1. the spouse:
A. serves in the United States military; or
B. is a civilian employee of the military or of a federal agency involved in military operations; and
2. the spouse’s employer requires a mandatory transfer to a new location.

“Good cause” is when the Appeals Division finds meritorious cause that is related only to the circumstances of the employment itself.  An example would be quitting when the job relocates a very long distance away, or when a worker suffers sexual harassment, exhausts in-house administrative remedies per company policy and the harassment persists or worsens.

In general, from an unemployment benefits standpoint for a worker it’s usually better not to quit a job at all but to attempt to remain employed, forcing the employer to terminate/lock out the employee.  In some circumstances conduct that may be tantamount to quitting may also be interpreted as tantamount to misconduct, such as walking off of the job.

If you have quit your job, willingly or under duress, and you want unemployment benefits, you should definitely consult an attorney.

Please find out more about how an attorney can help with Maryland unemployment benefits on this law firm’s Maryland unemployment benefits page.