View the Unemployment Compensation Toolkit for more information on Unemployment Compensation.
Can I get unemployment benefits if I quit my job?
Probably not, unless special circumstances caused you to quit.
What are the special circumstances? There are two pieces:
- First, you must have what the law calls “Good Cause”
- Second, that Good Cause must be due to the “Fault of the Employer.”
Here’s a couple of real simple examples.
- The company wouldn’t give you the safety equipment required under the law to do your job. That’s a good cause, and that’s the company’s fault. You’ll get benefits if you quit a dangerous job because the company won’t give you safety equipment.
- Your car broke down and you didn’t have any way to get to work. That’s not the company’s Fault. You won’t get unemployment benefits.
I quit because my boss told me I’d be fired if I didn’t quit. He said it would look better on my record if I resigned. Can I get unemployment benefits?
This is called a “Quit Or Be Fired” situation. If you prove that’s what happened, then the unemployment agency will NOT regard this as a “voluntary quit.” Because it wasn’t voluntary. You were fired. You had no choice about the job ending. That’s not a “quit.”
Because it was really a “firing,” the unemployment agency will treat it like any other discharge case. The agency will ask whether there was Simple Misconduct, or Gross Misconduct, that caused the “Quit Or Be Fired” order. If there was no Misconduct, there will be no penalty.
In this situation, it is really important for you to tell Unemployment that you didn’t actually quit. Explain that you were given a “Quit Or Be Fired” ultimatum.
It will be up to you to prove that you were put in this “Quit Or Be Fired” situation. You will have to show that you did not choose to quit. Once you prove that, the agency will not impose a Voluntary Quit penalty.
I quit my job because my boss changed my job duties, or my pay rate, or my work location, or my hours. Do I qualify for benefits?
Maybe. This will depend on how significant the change is. The more drastic the changes, the more likely it is that you will be justified in quitting.
The general issue is whether a “reasonable person” would choose to quit their job rather than put up with the changes. Most people will not quit their jobs easily. So this can be a difficult test.
Here are some examples.
Change in Pay. You were hired at $10 an hour. The boss comes and says the company’s having trouble, so your pay will be reduced to $8 an hour. That’s a substantial change. Virtually any significant reduction in pay will justify a decision to quit.
Change in Hours. You were hired for 40 hours a week. Now the company has cut you back to 30 hours a week. That’s a substantial change. Like reduction in pay, almost any real reduction in hours will justify a decision to quit.
Change in Work Location. You were hired to work at the main office, in the town where you live. The company later says you have to switch to a newly opened office which is 75 miles away. That’s a substantial change. That will probably justify a decision to quit.
- But closer the new location is, the less likely the change in distance will justify the quit. There’s no magic line or distance. The agency will consider other factors, such as the type of work, the rate of pay, or the prospect of getting another job.
Change in Duties. You were hired to run sophisticated equipment in the plant. Later, your boss says you’ve been busted to being a janitor, and you won’t be running the fancy equipment any more. That’s a big change. You will probably be found justified in quitting the job.
- Suppose you were hired to run sophisticated equipment. You’ve become really good at working with one particular machine. The boss moves you to work on a different fancy machine in the plant. You may not like it, but that’s probably not a big enough change to justify a voluntary quit. You will probably lose your benefits if you quit for this reason.
I quit because my boss was harassing me and treating me unfairly. Can I get unemployment benefits?
This depends on two things. First, why the boss was treating you this way; second, whether you went over the boss’ head and complained to somebody higher up in the company.
First of all, no employer can harass you because of illegal discrimination factors: race or color, gender, religion, age, disability, or national origin. If you’re being treated differently because of one of these illegal factors, that’s a violation of the law by the company.
You may be required to show that higher ups in the company were aware of what was going on. “The company” has to have a reasonable chance to stop this sort of thing. If it’s happening in secret, the higher ups may not know about it. You will need to talk to the Human resources office, or someone above the person that is harassing you because of these illegal factors.
But suppose the harassment or bad treatment is NOT due to one of the illegal factors (race, color, religion, gender, age, disability, or national origin). Maybe it’s just a personality dispute – the boss just doesn’t like you. Maybe the boss is picking on you because he wants you to quit so his cousin can have the job. Maybe the boss realizes you are smarter than he is, and he wants to get rid of you. These kinds of things aren’t “fair,” but they also are not automatically illegal.
In these situations, the general rule kicks in: would a “reasonable person” quit their job over this sort of thing, or would a “reasonable person” decide they just had to put up with it while they looked for another job?
If the boss is cursing you and/or using abusive language, beyond the bounds of decency, then Unemployment may say you had justification for quitting.
If the boss just usually gives you the crummy work, and gives Sally the most fun work, that’s probably not going to be justification for quitting.
I quit my job because I didn't like my boss (or someone I worked with). Can I still collect?
Probably not. Caimants who quit their jobs are disqualified from receiving benefits unless they quit for a good reason involving employer fault. Simply disliking your boss or a co-worker isn't good enough.
However, if your boss or a co-worker harassed or mistreated you and your employer did nothing about it, see a lawyer. Not only are you probably entitled to benefits, but you may also have grounds for a lawsuit.
I quit because co-workers were harassing me and treating me unfairly. Can I get unemployment benefits?
Maybe. In this situation, to be justified in quitting, you will have to show that the problem was due to “fault on the part of the employer.”
It wasn’t your boss, or the company, that was harassing you. It was other people in the office. So why would that be the fault of the company?
First, you’ll have to show that the harassment was severe and unreasonable. It wasn’t just ordinary workplace teasing, or arguments, or personality conflicts between employees. Instead, it was so serious that most people would quit their job rather than put up with it.
Second, you’ll have to show that the boss or the company was aware of the situation and didn’t take reasonable steps to try to fix it. Basically, you’ll have to go to the boss, or the regional supervisor, or someone higher up in the company, and ask them to stop the bad treatment. If the company fails to act, or fails to even try to solve the problem, then you may have justification for quitting.
I quit because the company wasn’t maintaining a safe workplace, or didn’t give me the safety equipment needed for the job. Can I get unemployment benefits?
Yes, if you prove that the company was aware of the unsafe conditions and did not take reasonable steps to fix them.
Example - benefits awarded: you were employed as a tree trimmer, working high up in trees. The safety harness you were supposed to use was old, and had cracks and tears. The company refused to replace it with a good one, and told you to do your work anyway. This is Good Cause, and it involves “Fault on the Part of the Employer.” You will not be disqualified from benefits.
Example - benefits denied: You were employed as a tree trimmer, working high up in trees. The company gives you all the harnesses and safety gear that OSHA requires. But you want even more safety protections. Because the company has followed OSHA regulations and given you all required safety gear, that company will not be “at fault.” If you quit, you will probably be disqualified from all benefits.
I quit my job because I'm moving or need to stay home to care for my family. Can I get benefits?
No. Unless your reason for quitting involves fault on the part of the employer, you are disqualified from receiving benefits until you return to work for 30 days.
Quitting for personal reasons, like taking care of family or moving to a new town, is not the employer’s fault. Even if it seems like “Good Cause,” it is not created by the employer. So you will not get benefits.
I had to quit my job because of a medical condition. Can I get unemployment benefits?
Yes, BUT ... there are two very strict requirements you must meet. If you don’t meet the requirements, it doesn’t matter how serious your health issues may have been.
Here are the two requirements:
- You must tell the employer about the medical circumstances within two business days of leaving the job, if possible. (If you’re unconscious in the hospital after an accident, obviously you can’t meet that deadline. But you should inform the employer as soon as it is possible to do so.) AND
- Within 30 days after quitting you must give the employer a “written certification from a licensed physician” that your work “aggravated, worsened, or will worsen” your health.
If you do both of these two things, you’ll get your benefits.
If you miss the deadline on either one of these requirements, you will not get unemployment benefits.
I was offered a job after I was unemployed, but I turned it down. Can I keep getting benefits?
If the offered work was “suitable” and you turned it down, you will lose your benefits for at least four weeks.
If the offered work was NOT “suitable” and you turned it down, there should be no disqualification from benefits.
There’s no easy definition of “suitable work.” The unemployment agency will consider a number of factors:
- The degree of risk the offered work poses to “health, safety and morals;”
- Your physical fitness and prior training for that particular kind of work;
- You experience and prior earnings in your field of employment;
- How long you have been unemployed;
- Your prospects for getting the kind of work you’ve done in the past, in your local area; and
- The distance of the offered work from your home.
The more similar the offered job is to your previous work, the more likely you will be penalized for refusing it. Suppose the offered job has a similar rate of pay, or similar duties, or similar distance from home. You will probably lose your benefits if you turn it down.
But suppose the offered job is for much lower pay, or much farther away, or much less responsibility than your old job. You probably won’t be disqualified in this situation.
Here again, it comes down to whether a “reasonable person” would take the work, or refuse the work.
What if I get a part-time job while I'm collecting benefits?
You can earn up to $60 per week and still collect your full unemployment benefits. Any income exceeding $60 will be deducted from your weekly checks.
I didn’t totally lose my job, but my employer cut my hours way back. Can I get some unemployment benefits to help me out while I’m not earning much money?
Yes, a little bit. This is called “partial unemployment” or “low earnings benefits.”
A partially employed claimant is entitled to collect his weekly benefit amount minus any wages exceeding $60 per week.
- Suppose your weekly benefit amount is $100.
- Your low earnings wages run at $80 a week.
- The amount of earnings that exceeds $60 - that’s $20 - will be knocked off your $100 benefit amount.
- You will be entitled to get $80 in unemployment compensation.
In this example, the person would receive earnings of $80 a week, plus unemployment of $80 per week, for a total of $160 per week.
What if I'm not getting any work because of a labor dispute?
For the first four weeks of a strike or labor dispute, your benefits will depend on whether you have directly financed or participated in the labor dispute and therefore contributed to the work stoppage.
Suppose you are one of the strikers. You don’t have work because you are on strike. For the first four weeks, you will be disqualified from receiving unemployment benefits.
But suppose you are not one of the strikers. The company has shut down during the strike, so you have no work and no earnings. You will not be disqualified from receiving unemployment benefits.
If a Union strike lasts for more than four (4) weeks, you are then likely to qualify for benefits even if you participated in the dispute. But cases involving strikes and labor disputes can be complicated. In general, it is best in such a situation to talk to a labor lawyer to find out where you stand.
Where do I file my claim?
West Virginia has 21 claims offices around the state.
You can get the address of any claims office by calling the Charleston number: 304-558-0291 (or toll-free at 1-800-379-1032).
Or go online here.
What if I’m unemployed for a long time, and need benefits for more than 26 weeks?
Under federal law, basic unemployment benefits are generally available for up to 26 weeks of unemployment. That’s six months. This is the minimum period of benefits in every state.
Occasionally, when economic times are bad, the US Congress will approve additional money to help state pay “extended benefits.” Sometimes the Extended Benefits may be only 12 additional weeks of Extended Benefits. Sometimes Congress will approve an additional 26 weeks of Extended Benefits. During the worst of the 2009 to 2011 recession, Congress added 73 weeks of Extended Benefits, so that long term unemployed people could receive a total of 99 weeks (almost 2 years).
As of now, there are no Extended Benefits in effect. The maximum length of time currently available is the basic 26 weeks.
Can I appeal if the unemployment agency denies my claim?
Absolutely, if you act quickly. You have an absolute right to appeal. But you only have 8 days to file appeals in the unemployment compensation agency.
To file an appeal, go to the local office. Tell them you want to appeal your last decision. They will give you a simple form to sign. That’s it.
There is space to write an explanation of why you think the decision was wrong. But this is not required. You can file an appeal just by signing the form.
What is the procedure once I file my application for unemployment compensation benefits?
First, the agency will contact your last employer. The employer is asked to fill out a form, giving its version of why you are now unemployed.
Then a “Deputy” in the unemployment agency will look at your application, and the information from the employer. Sometimes the Deputy will ask you and the employer to provide more information, through a phone call or by a personal meeting with the Deputy.
Then the agency will mail a “Deputy’s Decision” to you and to the employer. This is the first ruling on your claim for benefits.
Either side can ask for an appeal from the Deputy’s Decision. The appeal request must be filed with Unemployment within 8 days after the date the Deputy Decision was mailed out. There is no fee to file an appeal.
What happens if there is an appeal from the deputy’s decision?
The next step is to have a formal hearing with an “administrative law judge” (also called an “ALJ”). This is a lawyer who will take evidence at the hearing. Evidence can include:
- Your testimony;
- Testimony by any witness you bring;
- Testimony by the employer;
- Testimony by any witness the employer brings;
- Any documents that either side brings to give to the administrative judge;
- Any other records, like time cards or photographs, that either side brings to the hearing.
The administrative judge will consider all the evidence. All the testimony of all the witnesses will be recorded. Usually within about one to three weeks after the hearing the administrative judge will mail you a written decision in the case.
THIS HEARING IS THE MOST IMPORTANT STAGE IN YOUR WHOLE CASE! This ALJ hearing is your chance to testify. This is your chance to bring witnesses. This is your chance to bring documents (or subpoena documents from the other side). And this hearing is your only chance to prove your case.
If you don’t bring all the evidence you need, TOO BAD! You won’t get a second chance to do it over. Everything from this ALJ level on up will be based upon the evidence and testimony that was presented at the hearing. No new evidence or testimony will be permitted except in very unusual circumstances.
After the hearing, the agency “might” allow you to submit additional evidence that did not exist at the time of hearing. But if it existed but you just didn’t get it an and you d bring it, you will not be allowed to submit it later.
Witnesses who did not appear due to “good cause” (such as a car accident, or health problems) may be permitted to testify later if you ask for permission. But witnesses that you “could have brought, but didn’t,” will not be allowed to testify later.
So don’t take any chances. Bring all your evidence to the hearing. Bring all your witnesses. Don’t leave anything out!
Better yet, contact Legal Aid to see if we can represent you at the hearing. It is SO IMPORTANT to make sure your case is presented clearly and effectively at the hearing.
After the hearing the ALJ will mail a decision, usually within 2 to 3 weeks. Either party has the right to appeal. The request for appeal must be filed with the agency within 8 days from the date the ALJ Decision was mailed. There is no fee to file this appeal.
What happens if there is an appeal from the ALJ decision?
If there is an appeal from the ALJ Decision, your case will go to a three-person Board of Review in Charleston. The three Board members will read the transcript of testimony that was given at the ALJ hearing. They will review any documents submitted at the hearing. The Board will not take any new witnesses, any new evidence, or any new testimony.
After an appeal is filed, the agency will type up a transcript of the hearing. A copy of the transcript will be mailed to each side.
After you receive the transcript, you will get a notice of the date and time the Board will consider your case. That will usually happen within 2 to 4 weeks after you receive the transcript.
You can choose to come to Charleston and personally appear to discuss your case. But you are not required to appear in person at the Board of Review meeting. You can choose just to submit a written letter stating why you think the administrative judge was right (or wrong). If you submit a written letter, you must send a copy to the employer at the same time.
The Board will look at whether the administrative judge was right or wrong, based on the evidence and information the judge was given. Again, the Board will not take new evidence or testimony. If you didn’t provide all the necessary information at your hearing, you are just out of luck.
The Board of Review proceeding is very short. The Board often gives only 5 or 10 minutes to each case, for BOTH sides to state their position.
Especially if you live a long way from Charleston, contact Legal Aid to see if we can represent you at the Board of Review meeting. It is SO IMPORTANT to make sure your case is presented clearly and effectively at the Board level.
Usually within about one to three weeks after the Board discussion, they will mail you a written decision in your case. Either side has the right to file a further appeal. However, the next appeal has to go the Circuit Court of Kanawha County. So it is much more difficult.
What comes after the board of review decision? Is that when the case has to go to court?
The next appeal step goes to the Circuit Court of Kanawha County. You cannot file an appeal to the circuit court in your home county. All unemployment appeals are required by law to be filed in the Circuit Court of Kanawha County in Charleston.
The deadline to file an appeal in court is 30 days from the date the Board of Review decision was mailed. The appeal must be actually filed in the office of the Circuit Clerk of Kanawha County by the end of the 30th day. If you put it in the mail on the 30th day, that is not good enough. The Court is not legally permitted to allow anyone to file a “late appeal.” No matter how good their reason might be, the Court simply does not have authority to permit a late appeal.
There is a substantial fee to file an appeal in the Circuit Court of Kanawha County. If you cannot afford to pay the fee, you can ask for a Fee Waiver Affidavit. You will need to fill out a lot of information about your household income and property. You will have to provide a document to verify each type of income that you list on your affidavit. The Clerk’s Office will decide whether you qualify for a fee waiver. All of this must be completed before the end of the 30th day after the date the Board of Review decision was mailed.
In Circuit Court, the process slows down dramatically. Most unemployment appeals in circuit court take at least six months to reach a decision. It is not unusual for unemployment appeals to take over a year to get to a final decision.
If you want to file an appeal to Circuit Court, you should apply for help from Legal Aid or another lawyer as soon as possible after getting the unfavorable Board of Review decision. A lawyer will need time to evaluate all the evidence in your case and decide whether you have an appeal worth handling.
View the Unemployment Compensation Toolkit for more information on Unemployment Compensation.