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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7115
Experience:  Significant experience in all areas of employment law.
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my salaried position has been full time telecommute for last

Resolved Question:

my salaried position has been full time telecommute for last 2.5 yrs. This was required for me as single dad with three kids. Employer now changing telecommute policy to require substantial time in the office which I cannot do. Can I resign with good cause without risking any potential claim for unemployment insurance? Or to keep that option intact, should I declare I cannot abide by new policy in which case they would release me. thank you
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear that your employer is no longer permitting you to telecommute on a daily basis and I appreciate the difficulty that is imposing upon you with a large family.

In general, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (this is usually only an issue if you have been employed for a very short period of time), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

At issue in your circumstance would be the last of the above-stated criteria--out of work "through no fault of your own." Typically, when an individual quits his or her job or refuses to perform the job tasks assigned to them, the EDD reasons that they are unemployed "through fault," since they made the voluntary decision to become unemployed.

The above noted, California law prescribes for certain very limited circumstances in which an individual can quit his or her job with "good cause" or refuse a modified assignment and still remain eligible for benefits.

One such exception is in circumstances where the claimant's job requirements are suddenly changed to required the claimant to travel large distances to attend work. In such cases, the EDD often determines that the claimant quits with "good cause" or that they are fired due to no fault of their own because they cannot engage in the commute. To this end, the EDD states in its "Benefits Determination Guide" as follows:

"Because travel time is subjective, depending upon the claimant's situation and labor market area, there is no hard-and-fast answer for "how much time should the claimant be required to spend in traveling to reach work?

In P-B-232, the claimant was employed as a telephone operator in Salinas, working 8 a.m. to 5 p.m. She walked to and from work. The employer had to reduce its staff and the claimant could have "bumped" into the Monterey office 24 miles away, working 1:30 p.m. to 10:00 p.m. In holding the claimant eligible, the Board stated:

. . .[S]he would have been required to spend approximately three hours per day in commuting time at what would undoubtedly have been a fairly substantial cost. In addition, the claimant would have had to make other arrangements for the care of her child. Undoubtedly, this too would have involved a considerable extra expense in view of the required additional three hours away from home and the fact that evening care would have to be provided. Considering all of these factors, it is our conclusion that the claimant had good cause for leaving her employment."

As pointed out in P-B-25:

"Travel time should not be considered in a vacuum but in context with all other factors such as distance, cost of commuting, the wages paid for the work, the nature and permanence of the job, the nature and permanence of any travel difficulties, and numerous others."

See here for a further discussion of the circumstances under which travel time or distance may constitute good cause for an employee to quit and retain their right to collect UE benefits: http://www.edd.ca.gov/uibdg/Voluntary_Quit_VQ_150.htm#Time,%20Distance%20and%20Cost

So to summarize, while an individual typically cannot quit or disregard a change in job assignment and remain eligible for UE benefits, excessive travel time or distance can under some circumstances constitute "good cause" for an employee to quit or refuse a job assignment and collect benefits.

As the EDD notes, these circumstances are never viewed in a vacuum and the hardship of the commute must be considered in context. Assuming you can prove that the commute poses a substantial hardship, either due to the distance, the personal difficulty it imposes on your ability to care for your family, or some combination of the above, you would have a very good argument that you retain eligibility despite being let go or quitting under the circumstances.

Regardless of whether you quit or refuse to commute and let them fire you, you will want to make sure you document in writing your concerns regarding the commute so that there is a clear paper trail supporting this as the reason for your action. So, it would be wise to send emails and/or letters explaining what the commute will do to you and your family and why it is not possible.

Ultimately, it may be better to have them let you go, since claimants who voluntarily quit are always tasked with overcoming the initial burden of proving they did so with adequate cause. However, an individual in your circumstance would very likely retain eligibility for benefits either quitting or letting your employer terminate you for not commuting.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 1 year ago.

thank you- very helpful. How does this sound to initiate the paper trail?


 



My understanding when I accepted the offer for this position in May 2011 was that my tasks could be accomplished via telecommuniting, which was acceptable to me as a single father with three school age kids. My understanding is that the telecommute policy has changed for our business division which requires employees to be at the Cypress worksite on Katella Blvd. for at least two days per week. I am unable to adapt to the new policy as I need to drop off kids for two start times (8am and 9am) then pick kids up from school weekdays at 2pm and 3pm. In between are early pick ups when kids are sick or for doctor/dental or othrodonist vists, then drop offs for after school activities such as soccer and gymnastics.

I am willing and able to perform the tasks required of this position in a continued full-time telecommuting capacity, however I cannot ajust to the new policy.

sincerely,
mjb

Expert:  Patrick, Esq. replied 1 year ago.
Mike,

Thanks for your reply. The above is extremely well worded and accomplishes what is necessary to document your position.

If you have any further concerns, please do not hesitate to let me know and I'll be happy to continue helping.

Good luck.
Customer: replied 1 year ago.

just one more question... if they propose a pay cut if I don't accept new policy and then I resign. Would that strengthen or weaken my case for justifiable cause for voluntary resigntation?


 

Expert:  Patrick, Esq. replied 1 year ago.
UI claimants are only obligated to accept "suitable work" and may turn down unsuitable work with "good cause." In regard to defining "suitable work," Unemployment Insurance Code Section 1258 states in relevant part:

"'Suitable employment' means work in the individual's usual occupation or for which he is reasonably fitted, regardless of whether it is subject to this division.

In determining whether the work is work for which the individual is reasonably fitted, the director shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation . . . . "

There is no hard line rule as to what constitutes a sufficiently lower rate of pay to make the offer of employment no longer "suitable." However, in P-B-310 (a published EDD decision regarding the denial of benefits) the administrative law judge presiding over that claimant's hearing determined that a 43% reduction from the employee's prior wages made the new offer of employment "unsuitable."

There are other EDD decisions in which judges found that reductions in an employee's pay as little as 20% gave them "good cause" to quit (on the theory the work was no longer suitable).

Based on these numbers, I'd say if the reduction in pay is more than 40%, you'd have a very strong argument the work is no longer suitable. If the reduction is less than 20%, the reduction will not give you good cause, and if it falls somewhere in between 20-40, then you are in a real grey area.

Of course, you have the commuting issue to prove good cause as well, but strictly looking at reductions in pay, this is how the law in CA treats such circumstances.

I hope this clarifies.
Patrick, Esq., Lawyer
Satisfied Customers: 7115
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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