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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 15068
Experience:  Significant experience in all areas of employment law.
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I have a FT employee who walked out of the job at 2:00 pm on

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I have a FT employee who walked out of the job at 2:00 pm on a Monday. Called me later and stated she was not happy with her salary increase of $1.00 and didn’t think it was going to work for her working with our company. Now she is saying she didn’t resign. Can I just consider her quitting?
JA: Was this retaliation? Or based on age, race, religion, gender, or disability?
Customer: What retaliation ?
JA: The Employment Lawyer will be able to walk you through that. What kind of workplace is this (private sector, public sector, etc.)? How many employees?
Customer: Prívate - 2 employees
JA: Where are you located? Workplace termination laws vary by state.
Customer: Texas
JA: Anything else you want the lawyer to know before I connect you?
Customer: I need to know if we have grounds for terminating her and if she claims she didn’t quit. Who has the burden of proof
Hello and welcome. I think to answer your question it would help to know why you are asking it. Why do you believe the distinction between termination and resignation would be significant here?
Customer: replied 14 days ago.
Unemployment benefits she might try to seek and when I asked her to send her resignation letter for leaving last Monday - she said she didn’t quit. She didn’t like working here anymore.
Customer: replied 14 days ago.
I have been charged but no answer.

Thank you. I appreciate your patience as I am dealing with multiple customers and it takes time to put together responses. Rest assured I have not forgotten about your question.

Most likely if she is claiming she wants to work and you now refuse to provide work, she will be approved for benefits. What you would need to do in order to get the claim denied is make it clear in writing that her job remains available to her. If she doesn't accept the work that is available to her, that will result in her being denied benefits--regardless of whether she may have "resigned" or been "terminated." That distinction ultimately does not matter, what matters is whether she is currently not working by choice, or involuntarily due to your refusal to provide work.

Customer: replied 14 days ago.
She isn’t claiming she wants to work here. However, her performance is not acceptable. She walked out and hasn’t come back to work since last Monday. I would consider her quitting.
Customer: replied 14 days ago.
She is not working by her choice.
Customer: replied 14 days ago.
She claims she wasn’t treated fairly because another employee had more flexibility than she did and she didn’t get the raise she wanted.

She's not working by choice, but you are also not offering her employment, so it's sort of a standoff situation. To be in the strongest position to get unemployment denied, you would want to put something clear in writing that her job remains available.

Customer: replied 14 days ago.
Why should I have to offer her employment when she walked out and has not come to work. It’s not job abandonment?

Without that, to be honest, the presumption is sort of in her favor. After all, if you didn't fire her then why are you now refusing to offer her work?

The issue is proof. Sure, you can claim she abandoned her job, but unless you can show that she is actually refusing work, you are not in an ideal position to get benefits denied.

Customer: replied 14 days ago.
Let me get this straight - if an employee walks out from his or her job - the employer has to pay her unemployment why?
Customer: replied 14 days ago.
Can I not Fire her?

Because the employee is claiming they didn't quit. It's hard to overcome that if you don't have something to back up that they are actually refusing work.

Customer: replied 14 days ago.
Surely I can fire her

Yes, you can fire her--you can always fire someone. But they will be eligible for unemployment, most likely, if you do.

Keep in mind an unemployment benefits claim is not the end of the world. It can have a small impact on your UI premiums, but the financial impact is not so large that it should dictate how you run your business.

Customer: replied 14 days ago.
What is my best position - if I choose to fire her what do I have to do? Do I just pay her last check and the one day and who do I tell she abandoned her job? Do I call unemployment?

I would tell her that you are letting her go for job abandonment. That gives you a shot at getting benefits denied on the theory that you terminated her employment due to misconduct (abandonment). You would immediately pay her final wages and then, when the unemployment office contacts you (which they'll do once she files a claim) you'll be able to explain that you terminated her for abandonment.

Please let me know if there's anything else I can do for you...

Customer: replied 14 days ago.
Ok so i am letting her know that we are letting her go for job abandonment.

That sounds like the best approach given the circumstances.

Again, please feel free to let me know if you have any further concerns. If so, it's my pleasure. If I have answered your questions this evening, I would be very grateful for a positive rating of my service (using the stars at the top of the page) so that I may receive credit for assisting you.

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