Our former nanny applied for unemployment benefits? She was fired due to poor attendance – will she get benefits?
The working arrangement between a nanny and the family is considered employment at-will under US common law unless the written work agreement specifies a term of contract. In broad terms, at-will employment means that employment is presumed to be voluntary and indefinite for both employees and employers. An at-will employee (nanny) under the doctrine may quit a job whenever and for whatever reason s/he wants, usually without consequence. In turn, at-will employers may terminate the employee whenever and for whatever reason they want, usually without consequence.
Generally, a discharged employee is eligible for unemployment compensation if s/he is dismissed for any reason other than “for cause.” If a nanny leaves voluntarily, s/he is not eligible for unemployment benefits unless the nanny leaves for “good cause,” which is often referred to as “constructive discharge.”
An employer does not have the power to deny unemployment benefits, only to protest them. The state unemployment office makes the final decision. Both the employer and the employee have a right of appeal. Generally, an employee is eligible for unemployment compensation if he or she is dismissed for any reason other than “for cause.” The burden of proof for “cause” rests on the employer. For this reason, many employers will document the poor performance in writing, and provide the nanny the written warning that the specific performance issue may result in termination. This documentation carries a lot of weight when the state is making the benefits determination.
If an employee leaves voluntarily, s/he is not eligible for unemployment benefits unless the employee leaves for “good cause,” which is commonly known as “constructive discharge.” An example might be as follows:
A nanny was hired to work from 7 AM until 6 PM weekdays. She and the family negotiate a written work agreement that memorialized the terms and conditions of employment, including schedule, salary, and benefits. The nanny enrolls in a Saturday/Sunday degree program at a local college for which the family provides limited tuition assistance. 20 months into the employment arrangement, the family announces that, effective immediately, the nanny’s schedule will change to Wednesday – Sunday 7 AM – 6 PM. The nanny explains that she cannot work this schedule due to the conflict with her college commitments, and quits. She files for unemployment benefits, citing constructive discharge. The benefits determination process takes into consideration the unilateral and substantial change to the employment agreement, and awards benefits.
Poor attendance was cited as the reason for this nanny’s separation. Provided that the employer has documentation of the attendance issue – time cards documenting the missed time for example, or a written warning – the employer may (but are not guaranteed) prevail in the unemployment benefits appeal.
A carefully written work agreement protects the family as well as the nanny.