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Law Line - Unemployment Compensation

These messages only provide general information. If you have questions about your own situation, you should talk to a lawyer. For information about applying for Legal Aid, go to the Apply for Help page.

Can I Draw Unemployment Benefits If I Was Fired?

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That depends on why you were fired. There are three general categories.

First, you were fired but there was no Misconduct on your part. You will get benefits. For example, the company shuts down, or you get laid off, or the boss fires you to hire his cousin. There is no penalty against you.

Second is what’s called Simple Misconduct. You were fired for violating employer rules. This is things like coming in late, missing work, refusing job orders, and the like. You’ll lose the first six weeks of benefits. After six weeks, you can start drawing benefits if you’re still unemployed.

Understand that minor mistakes and isolated accidents do NOT count as misconduct. Doing your best, even if it isn’t good enough to suit the boss, is NOT misconduct. Unless you’re doing it on purpose, or screwing up so often that it’s clear you don’t care, mere inefficiency is not Misconduct.

The third category is called Gross Misconduct. For this, you lose all benefits. This category includes things like arson, burglary, theft, embezzlement from the employer. Being intoxicated on the job is Gross Misconduct. Physical violence against co-workers or supervisors is Gross Misconduct.

There is one other type of Gross Misconduct, based on violation of “prior written warnings.” Suppose you have done something that is Simple Misconduct, like coming in late. The boss gives you a written warning that you could be fired if you come in late again. Then you do it again, and you get fired. Even though normally coming in late is only Simple Misconduct, because you had a previous written warning now it is Gross Misconduct. You lose all benefits.

Legal Aid's web site has a full set of Frequently Asked Questions about Unemployment Compensation. If you want more information, take a look at our web site.

Can I Get Unemployment Benefits if I Quit My Job?

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It depends on why you quit. Most people who quit will NOT get unemployment benefits. There are two exceptions to this rule.

The first exception is a quit due to medical problems. But there are two very strict requirements. One, within two days of quitting you must tell the employer about the medical problem. Two, within 30 days of quitting you must give the employer a doctor’s written statement that your work would have made your health worse.

The other exception is if you have Good Cause which is the Employer’s Fault. For this exception you have to show two things.

First, you have to show “Good Cause.” That means a serious and important reason. Little problems and minor disagreements are not enough. The reason has to be something that would cause most people to quit in the same situation. Most people don’t quit their jobs unless something really bad is going on.

Second, you have to show “Employer Fault.” Things that aren’t the employer’s fault, won’t get you benefits. Suppose you quit because your car broke down and you couldn’t get to work. That’s not the employer’s fault. Suppose you quit because your mother was sick and you had to take care of her. That’s not the employer’s fault. To get benefits you’ve got to show that the employer was doing something wrong.

Here are some common examples of Good Cause Involving Employer Fault:

  • The company wasn’t following safety rules, or wasn’t providing safety gear.
  • The company wasn’t paying you according to the law. For example, you weren’t getting minimum wage. Or you weren’t getting paid on time every pay period. Or you weren’t getting overtime pay.
  • The company wasn’t paying you according to your agreement or contract. For example, the boss cut your rate of pay or your hours way down. Or increased your workload way beyond the original job description.
  • The company wasn’t following the company employee handbook.
  • The company was discriminating against you because of your race, color, gender, religion, national origin, or disability.

Be careful about that last example. Just being “unfair ”is not necessarily illegal discrimination. Treating you differently from other employees, is not necessarily illegal discrimination. The unfairness has to be because of race, color, gender, religion, national origin, or disability.

Plain old personality disputes are not “Good cause” unless they are because of illegal discrimination. If your boss just doesn’t like you and makes the job hard for you, that’s not “good cause involving employer fault.” If the boss gives Susie all the easy work and gives Janie all the crummy work, that’s not “good cause involving employer fault.”

For more information check out Legal Aid's full set of Frequently Asked Questions about Unemployment Compensation.

What If My Boss Told Me If I Didn’t Quit or Resign I Would Be Fired?

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This is called a “Quit Or Be Fired” situation. “Quit or Be Fired” is not a Voluntary Quit. The unemployment agency understands that a “Quit Or Be Fired” order actually is a firing. This is true even if you sign a resignation letter.

Because “Quit or Be Fired” is equal to a firing, the unemployment agency will look at why you were discharged. Like any other layoff or firing situation. The agency will ask whether the reason you were discharged was (1) No Misconduct, or (2) Simple Misconduct, or (3) Gross Misconduct.

Sometimes the company will tell you it’s “offering” the chance to resign instead of being fired. They’ll say it will “look better on your record” if you resign. Sometimes that is true. Sometimes they’re just trying to get you to quit so they can try to avoid the unemployment benefits.

None of that matters to the unemployment comp agency. Show them you were put in a “Quit Or Be Fired” situation. The agency will then decide whether you were fired for Misconduct or not.

For more information check out Legal Aid's full set of Frequently Asked Questions about Unemployment Compensation.

Can I Get Unemployment If The Company Didn’t Report My Job or My Wages?

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The law requires every employer to file information about the jobs and wages of every employee.

Sometimes employers don’t want to do this. Maybe they think it’s too much trouble. Maybe they don’t want to have to pay the taxes. But you still have the right to unemployment compensation benefits. Your claim cannot be denied because the employer broke the law.

So what happens if the agency says there is no record that you worked for this employer?

You have the chance to show your side. Give the agency any evidence that you actually were employed by this company. Take in any pay stubs, time sheets, or bank deposit records that support what you’re saying. Think of witnesses who can verify what you’re saying.

Once you show that you were employed there, the Unemployment Comp agency will deal with the company. Your claim for benefits will be processed. The employer may have some pretty big problems with the agency. But those problems will not affect your right to unemployment comp benefits.

If the agency does not accept your evidence, contact a lawyer.

For more information check out Legal Aid's full set of Frequently Asked Questions about Unemployment Compensation.

Can I get Unemployment If I’m Medically Unable to Work?

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No, you cannot get benefits if you are completely unable to perform any type of work at all. You must be capable of performing some type of work on a full time basis.

But let’s be clear. This definition is pretty extreme. It applies only to people who could not perform any job of any type on a full time basis. No matter how light the job, no matter how easy the requirements, they could not do any job even if it were offered to them. Those are the only people who are not eligible under this requirement.

And let’s be clear that this means more than just “I can’t do the kind of work I’ve always done.” For example, a back injury may mean you can’t do heavy construction work. But there may be some other work you could do. In that case, you can be eligible for benefits.

Suppose you are out of work now because of a medical problem. You’ll have to explain the medical circumstances to the agency. But if you believe there are other kinds of jobs you could perform, be sure and say that. You’re unemployed because you can’t do your previous job, but there are other jobs you could do if offered.

You’ll have to look for the kind of jobs that you can perform. But you should be able to draw unemployment benefits while you’re looking for those jobs. Most medical “restrictions” do NOT mean there is no kind of job in the world that you can perform. Just be sure you explain your situation clearly.

For more information check out Legal Aid's full set of Frequently Asked Questions about Unemployment Compensation.

Can I Get Unemployment If I’m In School or Vocational Training?

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Perhaps. You have to be “available” for full time employment if it’s offered, even if it conflicts with your school or training course.

The basic requirement is that you have to be willing to work full time. Not part time. Not intermittent, a little here and a little there. Not “I’ll work if it fits around my school or family schedule.” It means Full time. If you limit your search just to part-time jobs, you won’t get unemployment compensation benefits.

Suppose a person is in a school or training course. The training is really important to her. It will give her the possibility of much better jobs in the future. She isn’t willing to quit school to take a job. She would turn down a job if it conflicted with her school schedule or classes. That person is not "available for full-time employment." School has become primary. Employment is secondary. No unemployment benefits will be paid.

But suppose that person WOULD take an offered job even if it meant quitting or delaying the school or training. She’s going to school while she doesn’t have a job. She’s trying to better herself, while she’s looking for work. For her, employment is primary. School is secondary. This person would be considered "available." Unemployment benefits can be paid.

Simply being in training or education does not make you ineligible. It depends on the person’s attitude about taking full time work if it were offered. So be clear with the agency when you explain about your school or training course. If you are willing to take a full time job if one is offered, tell that to the worker when you apply. If you are not willing to take a full time job that conflicts with your course schedule, then you will not be eligible for unemployment benefits.

For more information check out Legal Aid's full set of Frequently Asked Questions about Unemployment Compensation.

Preparing for a hearing with an administrative law judge

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You applied for unemployment benefits. Your claim was denied at the first level. You appealed. Now the next step is a hearing with an administrative law judge. What do you need to do?

First of all, GET A LAWYER! Contact Legal Aid as soon as you file your appeal. Find out if Legal Aid can handle your case. Or hire a private attorney to help you. This hearing is absolutely the single most important step in your case. Don’t wait to see what happens at the hearing. If you lose the hearing, it may be impossible to win the case later.

If you don’t have a lawyer, then realize that it’s your job to bring the evidence you need. No one else will bring evidence for you. The employer won’t help you. The agency will not investigate your case. The judge won’t collect information after the hearing is over. It is up to you to bring the information you need.

Next, realize this hearing is your ONLY chance to submit the important evidence. Take it seriously, and be prepared. You get one, and only one, shot to provide the evidence you need. If you don’t bring what you need, you won’t get a “do over.” If you have to appeal again, you can’t submit evidence you should have brought to the hearing.

Suppose you need records from the employer, such as time sheets or personnel policies. You can ask the agency to subpoena the employer to bring those records. You have to ask for a subpoena at least a week before the hearing. And you have to give the agency a very clear written description of exactly what records you want.

Suppose there are witnesses you want. Contact them directly and make arrangements for them to come to the hearing. Nobody else will ask them to come testify for you.

Next, be ready to give the judge a full explanation of what happened. Think about what you’re going to say. Make sure your testimony is clear and easy to understand. Practice by explaining it to a friend, the same way you would tell it to the judge.

So let’s summarize with five points.

  • One, talk to a lawyer before you go to the hearing.
  • Two, understand that it’s your job to bring the evidence you need to the hearing. You get one and only one shot to do it right.
  • Three, you can subpoena records from the employer, but you have to arrange it ahead of time.
  • Four, if you need witnesses contact them and ask them to come testify for you.
  • Five, be ready to give a clear, simple explanation of your side of the case.

For more information check out Legal Aid's full set of Frequently Asked Questions about Unemployment Compensation.