I Was Fired. Can I Still Get Unemployment Benefits?

Yes! It's a common misconception that you can't get unemployment benefits if you were fired.

Not Every Discharge Is Disqualifying!

In reality, you are disqualified for unemployment benefits only if you were fired because of your "misconduct." Misconduct isn't defined in the law, but it usually means knowingly and willfully violating an employer's reasonable policy. This includes obviously unethical things like stealing from the register or instigating a fistfight. It can also include insubordination—refusing to follow reasonable directions from a supervisor.

Misconduct is distinguishable from a simple failure to meet the employer's performance standards. If your employer fires you because they say you just weren't a good fit, that's not generally misconduct, and you may be eligible for benefits while you look for a new job.

Misconduct, in my experience, is the single most commonly litigated issue in unemployment hearings. There are two main ways to fight an accusation of misconduct: "it didn't happen," or "it wasn't misconduct."

If you were accused of something that didn't happen, remember, employers have the burden to prove misconduct—you're "innocent until proven guilty." The standard of proof is lower than in a criminal trial; the employer just has to persuade the judge that you more likely than not committed some misconduct. But they do have to come up with some evidence. An accusation alone won't generally be enough. You'll be entitled at the hearing to present your own side of the story, including by presenting evidence and calling witnesses if necessary.

If you were fired for a reason that doesn't constitute misconduct—say, because you made a mistake at work—some employers will still argue that your mistake constitutes misconduct. (Whether this is out of ignorance or malice, I'll let you decide. You know your boss better than I do.) Hopefully, the Department of Labor will read the employer's submission and correctly understand that you're still eligible for benefits. If the Department gets it wrong (and they do sometimes), you're entitled to argue your case at a hearing.

You Can't Fire Me, I Quit! But Can I Get Unemployment?

It's not uncommon for employees threatened with discipline—whether it's for misconduct or for something else—to resign rather than go through the disciplinary process. Maybe you felt your boss was going to push you out no matter what you did and you'd rather get it over with. Maybe you felt you just weren't welcome in the workplace anymore. For purposes of unemployment insurance eligibility, the Board will be looking at whether you resigned "in anticipation of discharge" or "in lieu of discharge."

If you resigned in anticipation of discharge, that means you thought you were likely to be discharged at some point in the future, but it wasn't imminent or certain. For example, your boss might have presented you with a performance improvement plan (PIP) that set specific goals and said you were subject to termination if you didn't meet them by a certain date. If you felt you were being pushed out and quit in response, you likely quit in anticipation of discharge, because it was at least theoretically possible you might have met the goals and kept your job. (There might be some edge cases where the goals are completely implausible, but that's going to be a case-by-case determination.) If you resigned in anticipation of discharge, the Board is likely going to consider this a voluntary quit without good cause, which makes you ineligible for benefits.

On the other hand, if you resigned in lieu of discharge, that means you resigned in the face of relatively imminent and certain termination. If your boss demands your resignation, and you agree to resign, that's likely a resignation in lieu of discharge. When you resign in lieu of discharge, the Board considers that a voluntary quit with good cause, meaning the quit itself doesn't disqualify you from benefits. However, there are some caveats. First, it's likely (not certain, but likely) that you'll initially be denied benefits, and have to request a hearing to get them. Since most voluntary quits are legally without good cause, the Board typically requires you to show you had cause, rather than requiring the employer to show you didn't. Second, if the reason you were facing discharge was an accusation of misconduct, the Board may convert the issue from whether you had cause to quit to whether you committed misconduct. So the resignation isn't going to save you from having to argue about the underlying issues.

Tell the Truth!

In short, if the employer fired you because of accusations of misconduct—even if you deny the accusations, or if the accusations don't add up to misconduct—you do generally need to tell the Department of Labor you were discharged. But you should also tell them that you dispute the accusations and deny committing any misconduct.

Likewise, if you quit in the face of a likely or impending discharge, you need to tell the Department of Labor that you quit. But you can explain the circumstances and why you think they constituted good cause to quit.

If you've been denied unemployment benefits because of allegations of misconduct, contact us today.

Note: This post is for general legal information and is not to be construed as advice regarding your particular situation. Reading or commenting on this post does not create an attorney-client relationship. If you are unsure how to complete the unemployment application, you can ask for a consultation using our Contact Form. No attorney-client relationship exists in the absence of a signed retainer agreement.