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Ask FLACORPLAWYER Your Own Question
Category: Employment Law
Satisfied Customers: 4634
Experience:  23 Years as attorney, licensed NY and FL. Former US ATTY.
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Can I collect unemployment when I'm on a leave of absence

Customer Question

Can I collect unemployment when I'm on a leave of absence without pay from my job and I am unable to return from leave early (before the specified leave period)
Submitted: 7 years ago.
Category: Employment Law
Expert:  FLACORPLAWYER replied 7 years ago.
If you left your job voluntarily under the leave of abscense you are not eligible for UC. If they force you to take the leave, you are eligible. This is not difficult. Whether you were offered other jobs or not should not come into play at all.
Customer: replied 7 years ago.
The state of CA says that if you are on a leave of absence without pay and you are not performing any service for your employer, you are considered unemployed and therefore eligible for unemployment. Hawaii has no policy.
Expert:  FLACORPLAWYER replied 7 years ago.
The state of CA says that if the employer put you out on leave. Your job was in Hawaii and their rules should apply at least to the initial claim.
Customer: replied 7 years ago.
No, if the leave is voluntary, and both employer and employee agree to it. Here is a copy of the law.
Total and Partial Unemployment TPU 80.15
Leave of Absence or Vacation
This category discusses the employment status of a claimant who is on a leave of absence or vacation. Clearly a person who is on a leave of absence or vacation is no longer performing a "service" for his employer. However, it is possible that the person not performing service is still employed because to be unemployed he must perform no service and receive no wages. Severance of the employer-employee relationship is not necessary to establish that a claimant is unemployed.
In deciding whether an extended period of time off from work is a bona fide leave of absence, the deciding factor is whether or not the employer-employee relationship has been preserved. A leave of absence preserves the employment status if both employer and employee agree to its terms and if it guarantees or offers reasonable expectance of return to work. The employment relationship is preserved only if the employee intends to return to the employer and complies with the terms of the leave. The employment can be terminated during the leave period by either party.
Without a strong assurance of reinstatement there is no leave of absence and the employer-employee relationship is not preserved. For example, one employer may terminate a woman's employment because of pregnancy and tell the employee that she will be favorably considered for re-employment when she is ready to return to work. Such a promise, lacking a guarantee of rehire, preservation of seniority, and pension rights, or other benefits of continuous service, does not preserve the employment relationship.
The employment status of a claimant on leave of absence was decided by the court in Douglas Aircraft Company, Inc. v California Unemployment Insurance Appeals Board, et al. (citations omitted). The court held that a leaving of work within the meaning of Sections 1032 and 1256 occurred even though, because of the leave of absence, there had been no technical severance of the employment relationship.
In Benefit Decision 6610 the Board considered the case of a claimant who requested a leave of absence because of pregnancy. The Board held that the claimant "left" her work at the time of the leave, but did not sever the employer-employee relationship at that time, and said:
". . . we have held that a claimant may have left her work even though the employment relationship is not terminated because of a leave of absence. . .
In the present case, the claimant did cease working but she did not relinquish or yield her position. On the contrary, she sought and obtained a leave of absence which preserved the employment relationship until she was ready to return to work. . ."
In determining whether the claimant is unemployed or not, it is necessary to apply the same test as in other cases - is the claimant performing any service OR receiving any wages. This question came up in the case of a civil service fire fighter who was placed on leave pending the decision concerning his disability retirement and who, after using all accrued sick and annual leave, was put on leave without pay. This claimant was held to be unemployed during the period of leave without pay.
So, a claimant on leave or vacation, who performs no service, is unemployed if he is not in receipt of wages and employed if he is in receipt of wages.
The claimant on leave is performing no service and receiving no wages. In these cases, the Board has held that such a claimant is unemployed.
For example, in Benefit Decision 6061, the claimant requested a leave of absence because his wife was in poor health, and a physician recommended a change of climate. Under the terms of the collective bargaining agreement in effect at the establishment where the claimant last worked, his leave of absence was subject to immediate termination if he accepted other employment. The claimant was unwilling to accept any employment which would jeopardize his return to work at the end of his leave of absence. The claimant intended to return to his former work at the end of his leave of absence. In holding that the claimant was unemployed, the Board said:
"When the claimant herein filed his claim for benefits he was not performing services for his employer and was not in receipt of wages. Therefore, he was unemployed . . .
Expert:  FLACORPLAWYER replied 7 years ago.
I understand all that. But I don't see how you could be available for work in Hawaii if you were in California. I do understand your employer-employee arrangement was preserved because you intend to go back to them next year.
Customer: replied 7 years ago.
I am available to work in CA and did work last year. I was laid off in June in CA. when I applied to CA for unemployment they said file with HI. I filed with HI and they said their decision to deny does not effect my claim in CA. I do not have a claim in CA and now I can't open one because I was denied in HI. I can't open a claim here until July 2010. HI does allow interstate claims. I told them upfront the whole situation, showed the approved leave papers, etc. Told them I live in CA, everything. They did not express any concern. They took the claim, denied it and prevented me from opening one in CA
Expert:  FLACORPLAWYER replied 7 years ago.
You're being treated like a ping-pong ball. File a new CA claim. When it is denied start the appeals process. Hopefully you will get before an examiner with a brain. That's all I can offer unless you want to go the route of litigation which will be expensive and time consuming.