(a) Scope. This section relates to a voluntary leaving of work within the meaning of Section 1256 of the code and contrasts it with those situations in which an individual leaves work involuntarily as the result of a discharge, a layoff, a disciplinary suspension or any other cause of cessation of employment. This section distinguishes a suspension of work arising out of a trade dispute pursuant to Section 1262 of the code. This section also distinguishes causes of unemployment in which a separation issue does not arise. If an individual is separated from his or her "most recent work," as defined in Section 1256.3 of the code and Section 1256-2 of these regulations, the individual is disqualified under Section 1256 of the code only if he or she quits work voluntarily and without good cause or is discharged by the employer for work-connected misconduct. A claimant is not disqualified under Section 1256 of the code if his or her employment is terminated either as the result of a voluntary leaving with good cause or as the result of a discharge or suspension by the employer for reasons other than work-connected misconduct of the claimant.
If an individual voluntarily leaves his or her most recent work, the disqualification under Section 1256 of the code depends upon whether or not the leaving was with good cause. Section 1256-3 of these regulations sets forth general principles of good cause. Sections 1256-4 to 1256-23 of these regulations describe circumstances which are or are not good cause.
Sections 1256-30 to 1256-43 of these regulations relate to discharges for misconduct.
(b) Voluntary Leaving. A voluntary leaving of work occurs when an employee is the moving party causing his or her unemployment. A voluntary leaving includes, but is not limited to, the following common situations in which the employee is the moving party in causing his or her own unemployment:(1) A leaving of work at a time when work is available.(2) The employee's voluntary act or conduct is not work-connected misconduct, but compels the employer to discharge the employee which the employee knew or reasonably should have known would be the result (see subdivision (f) of this section).(3) A leave of absence requested by the employee (see Section 1256-16 of these regulations).(c) Involuntary Leaving. An involuntary leaving of work occurs when the employer is the moving party in causing the unemployment of an employee at a time when the employee is able and willing to continue working. An involuntary leaving includes, but is not limited to, the following common situations in which the employer is the moving party in causing the employee's unemployment: (1) A discharge or disciplinary suspension for work-connected misconduct (see Sections 1256-30 to 1256-43 of these regulations).(2) A discharge for reasons other than misconduct.(3) A layoff, due to a lack of work, for an indefinite period of time. However, a temporary layoff, due to a lack of work, for a reasonably definite period of time does not sever the employment relationship and if the employee terminates the employment relationship during such temporary layoff, the leaving is a voluntary leaving.(4) A layoff due to a mandatory leave of absence policy pursuant to employer rules or to the provisions of a collective bargaining agreement to which the employer is a party (see Section 1256-16 of these regulations).(5) A layoff due to limited tenure or job rotation provisions of a collective bargaining agreement between the employer and the union (see Section 1256-16 of these regulations).(6) A layoff of an employee during the course of a trade dispute in which he or she is not involved.(7) A change in the ownership of a business which results in an indefinite layoff of the employee even though the successor business extends an offer of new work to the employee. This would raise an issue of refusal of suitable employment under subdivision (b) of Section 1257 of the code.(d) Moving Party. Whether an individual leaves work voluntarily or involuntarily depends upon which party initiated a termination or suspension of the employment. The employer who refuses to permit an able and willing employee to continue working or the employer who is unable to provide continuing work is the moving party and the employee is involuntarily unemployed due to a discharge or layoff. Therefore, a voluntary leaving occurs only when work is available and the employee leaves work of his or her own free will. An employee who leaves work when asked by the employer to either resign or be fired, or an employee who resigns rather than agree to a forced leave of absence, has not left work of his or her own free will. In these situations, since the employee did not choose to quit, the employer is the moving party in the separation and the employee becomes involuntarily unemployed.
The employer is also the moving party if the employer discharges the employee but then gives the employee the option of either leaving immediately or remaining a few days longer, and the employee elects to leave immediately. However, the employer must in fact discharge the employee. For example, if the employer, in response to a complaint by the employee, replies that the employee can quit if the job is not satisfactory and the employee then does so, the employee is the moving party.
In the following situations the employee is the moving party in terminating the employment and thus the employee has voluntarily left his or her employment:
(1) The employee resigns in anticipation of a discharge or layoff and before the employer takes any action.(2) The employee resigns but delays the effective date of the resignation at the request of the employer.(3) The employee resigns effective as of a future date, the employer accepts the resignation and makes a firm offer to a potential replacement or incurs substantial expenses in recruiting or other efforts to obtain a replacement, and the employee subsequently unsuccessfully attempts to withdraw the resignation prior to its effective date.(4) The employee leaves work prior to the effective date of a discharge and is not paid beyond the last day actually worked. However, if the employee leaves work on the effective date of discharge but prior to the end of the normal workday, there is a discharge rather than a voluntary leaving, even if the employee is paid for that day's work. The employer would also become the moving party if the employer terminates the employee's employment prior to the effective date of the employee's resignation and does not pay the employee any wages beyond the date of the termination.(5) The employee refuses to exercise his or her right to "bump" another employee and instead elects to be laid off.(e) Termination of Employment. (1) General. Employment is terminated when, at the time of leaving, neither the employer nor the employee contemplates a resumption of the employment relationship. A termination of the employment relationship or a disciplinary suspension is necessary before there can be either a voluntary leaving or a discharge, but is not essential to other types of leaving. For example, there may be a physical leaving of work by the employee and yet the employment relationship continues in certain situations where the employee is on leave of absence, is temporarily laid off, suspended for a definite period, or is unemployed because of a trade dispute.(2) Leave of Absence or Layoff. Although an employee neither performs services nor receives wages during an authorized true leave of absence or a temporary layoff due to lack of work, the employment relationship continues because the work will resume at a later date, and there has been no termination of employment. A layoff for an indefinite period, or for an unreasonable length of time, or where there is no contemplation that the employee will resume his or her work in the future may sever the employer-employee relationship. In such cases there can be no leaving after the date of such a layoff. A true leave of absence exists if the employer and the employee mutually agree that the employee will return to his or her work after a period of absence and that the employment relationship is not terminated although the performance of services is suspended for the period of the absence from work. A leaving of work occurs when an employee voluntarily commences a true leave of absence. If the employer is unable to return the employee to his or her work upon the expiration of a true leave of absence, the employment is terminated at that point and the employee is laid off due to a lack of work. However, if an employee merely leaves for a fixed period of time with an understanding that he or she would be rehired at the end of that period only if work were available, then a true leave of absence does not exist. If no work is available when the period expires, the employment has been terminated and the employee has voluntarily left work as of the commencement of the period. A termination and voluntary leaving of work also occur if upon expiration of a true leave of absence the employee fails to return to work, or, if unable to return, the employee fails to request or requests without success an extension of the leave.
Section 1256-16 of these regulations should be consulted for a detailed discussion of a true leave of absence as it relates to the question of a voluntary quit with or without good cause.
(3) Suspension. A disciplinary suspension of an employee for a specific period of time raises a separation issue if the employee files an unemployment insurance claim during the period he or she is suspended. Whether or not the claimant will be eligible for benefits depends upon the reason the claimant was suspended by the employer. If the claimant was suspended for willfully and knowingly violating reasonable employer rules, the claimant will be disqualified on the basis of a discharge for misconduct connected with the work. This situation is similar to a constructive voluntary leaving, discussed below in subdivision (f) (see also Section 1256-43 of these regulations which discusses discharge for misconduct for violation of employer's rules).
(4) Termination by Mutual Agreement. There may be a separation by mutual agreement if the employer and employee have mutually agreed to separate, either at the time of termination or, initially, at the time of hire. In such cases the termination is neither a discharge nor a leaving and thus a disqualification cannot arise under Section 1256 of the code. The expiration of a fixed term contract of hire to which the parties initially agreed is an example of a termination by mutual agreement. EXAMPLE 1. A's employment was under a written contract which required two years of service in a foreign country. Approximately two weeks before the expiration of this contract the employer offered A similar contract for another two-year term. For personal reasons, A declined to enter into the new contract and did not continue working after the expiration of the contract.
Since A satisfied the terms of a specific period of employment, A became involuntarily unemployed and A's refusal to enter into a new contract of employment is not a voluntary leaving.
(5) Trade Dispute. A leaving of work by an employee because of a trade dispute pursuant to Section 1262 of the code results in merely a suspension of the employment relationship rather than a termination of employment. Such a leaving is not treated as a leaving under Section 1256 of the code (see Section 1262-1 of these regulations). An individual may not be directly involved in a trade dispute but may become unemployed due to the actions of others. For example, a nonunion employee who becomes unemployed, due to a plant closure arising out of a trade dispute with union employees, is temporarily laid off due to lack of work. Section 1256 of the code is not applicable at the time of the temporary layoff and would become applicable only by a subsequent termination of employment. This could arise by a refusal of either the employer or the employee to continue the employment relationship at the time work is resumed following the end of the trade dispute. An employee may voluntarily quit during a trade dispute if there is an unequivocal severance of the employment relationship. This could occur where the employee intends to sever the employment relationship and to abandon the employment. If this does occur, it raises an issue under Section 1256 of the code.(f) Constructive Voluntary Leaving. In some cases, the employee is deemed to have left work voluntarily even though the apparent cause of termination is the employee's discharge by the employer. Such a leaving is designated as a constructive voluntary leaving and it occurs when an employee becomes the moving party by engaging in a voluntary act or in a course of conduct which leaves the employer no reasonable alternative but to discharge the employee and which the employee knew or reasonably should have known would result in his or her unemployment. However, an employee is not required to comply with an unreasonable order of an employer, and a discharge in such circumstances would be a discharge for reasons other than misconduct and not a constructive voluntary leaving. The following examples involve a constructive voluntary leaving since the loss of employment is directly caused by the employee's voluntary action which set in motion the events leading to the employer's action of discharging the employee EXAMPLE 2. The driver's license of B, a truck driver, was revoked by the state due to a drunk driving conviction. The employer discharges B because B is no longer able to continue operating the employer's delivery truck.
EXAMPLE 3. C refuses to join a labor organization within the required time limit or fails to pay C's union dues as required by the terms of a collective bargaining agreement between the employer and a union representing the employees. The employer discharges C as required by the agreement with the union.
EXAMPLE 4. D is hired by a cannery for a workweek of Monday through Saturday. D works under such conditions for several years but then decides that for personal reasons D will no longer work on Saturdays. The employer discharges D due to D's refusal to work Saturdays.
Cal. Code Regs. Tit. 22, § 1256-1
1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).
2. Change without regulatory effect repealing subsection (b)(3) and renumbering subsection (b)(4) to subsection (b)(3) (Register 87, No. 40). Note: Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1257, Unemployment Insurance Code.
1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).
2. Change without regulatory effect repealing subsection (b)(3) and renumbering subsection (b)(4) to subsection (b)(3) (Register 87, No. 40).