Help me quit my job but win unemployment?

July 20, 2020 3:53 PM

My job is too stressful and I need to quit! Can I still get unemployment?

I'm 50, and I've worked as an administrator for an company which provides group homes for developmentally disabled adults for about 23 years. The realities of this industry mean that I've essentially been "on call" for almost all of this time dealing with one emergency or another, usually people calling out of work. We're only ever "off the hook" if we leave town or are using paid vacation time, only 4 weeks a year). I NEVER get a weekend away, my time off is not really "off," and at any moment on a Saturday morning, I could be required to drop what I'm doing and spend hours on the phone begging people to work, pressuring others to go in (for NO overtime!) or I will have to go in myself. I'm salaried so there is NO compensation for this either. Metafilter trust me when I say that after so many years of this, I'm going insane. I NEED to get out, but have no other skills / or job prospects.

Here's my desperate plan, but wonder if anyone has any advice?
I intend to send a letter to my supervisor, the CEO, and a couple people in top administration explaining, and requesting to be relieved of the "24-hour staffing crisis response" duty (I do a lot of other important things! I have skills and experience that are still valuable to the company! I just need to be off phone duty after so many years!). I've gone to my direct supervisor with this before, but there really is no will for a drastic reorganization just to make me happy, and the company is small which makes it difficult anyway. I anticipate that the company won't reorganize to give me the job I want, so then I will quit and go to unemployment.
Is there anything I can do to increase my chances of winning unemployment? Our company's custom is to fight unemployment cases, and usually if you "quit", you lose. I feel I surely have a case for quitting the situation for my mental health, although I'm not currently getting any medical or mental health treatment. Must I get a "Dr. statement" stating that i need a less stressful job for mental health? If so, does it matter when I get the Dr. statement? (should I do this first, before I send my letter?) Any other pertinent strategies? Specific verbiage to use in my correspondences? Any advice would be welcome.
Thanks metafilter!

posted by anonymous to Law & Government (12 answers total)

I'm not a lawyer, and this is highly specific to your circumstances. If you want a definitive answer, you'll want a lawyer.

Federal (and potentially local) minimum wage law will require you to be paid at least minimum wage for the hours you work. So, if your salary divided by the number of hours you are on-call results in a wage of less than minimum wage, they are (conceivably) violating minimum wage laws. Unfortunately, I suspect that's unlikely because the federal government says you could be forced to work 24 hours a day, 7 days a week, and only be paid $63K.

In general, employers are allowed to ask for any job requirements they want and compensate however they want. It's not illegal to offer a crappy job to people, so long as the company discloses the crappiness of the job, and pays the person more than minimum wage. If your employer views "24-hour staffing crisis response" as being a job requirement, and that requirement is not arbitrary or discriminatory against protected categories, then the government doesn't require your employer to modify the job to include individuals with mental health issues. I think its a highly specific legal question about whether a continuous on-call discriminates against, say, people with children (a protected legal category).

Correspondingly, departing a job due to failing to meet the job requirements makes unemployment a challenge. There is a notion of "constructive dismissal" - where the employer makes your job so hard that you are coerced into leave - but that will be, at best, difficult to prove. Further, if the job requirements include this continuous staffing, and it has been for a long time (like it sounds like it has been), it's particularly difficult to demonstrate constructive dismissal.

I think your approach will be more productive by identifying that your job is currently crappy regardless of your mental health. In other words, most all people (including me!) would hate being in a job where they are continuously on-call. If you change your job, the new person will have exactly the same problem. Presuming that you like the job outside the on-call, I'd suggest working with the employer to refactor the job so that the on-call is not continuously necessary. This approach solves the problem both for you and other potential people who may end up in the job. You do explicitly note that the company is unwilling to do this - which is why I suggest doing so in conjunction with a very specific threat of finding a new job. Companies are generally unmotivated to work with individual employees until they are forced to - so you should force them to work with you.

If you are unwilling/unable to find a new job, you can take the approach of simply not showing up for the on-call. This will force the company to either fire you or rework your job. In general, firing an employee does not make them ineligible for unemployment. Most states follow a standard of "misconduct" for denying unemployment. Misconduct is not doing your job poorly, it's doing things like accidentally burning down your place of employment. The general principle is that it's an employer's fault for failing to fill a position correctly as opposed to an individual employee's fault to not fulfill job requirements. Based on your description of the job, your company should be really disinclined to fire you. As a pragmatic matter, they would have a really hard time filling a job of continuous on-call position for exactly the reasons you are identifying. So, coercing them into a state of either filing that job (after firing you and you getting unemployment) or refactoring your job hopefully will make them pick the latter option rather than the former.
posted by saeculorum at 4:24 PM on July 20, 2020 [11 favorites]

On the MeFi Wiki Get a Lawyer page, there are links to legal resources for Employment and Unemployment Insurance questions that may help with a consultation on this legal question asking for legal advice. The relevant laws may vary by state, size of employer, and your specific situation, etc, so it is impossible for AskMe to give you advice that you can rely on for legal purposes. You may also have more options than you realize, but a lawyer in your state with a practice that focuses on employment law should be able to help explain your options.
posted by katra at 4:27 PM on July 20, 2020 [1 favorite]

Do you really have to quit, or do you just need weekends off? If the former then you might want to treat your age-related decreasing ability to handle the load as a matter for the Americans with Disabilities Act. (And having been there I don’t think you’d be wrong to do so).

Taking weekends off is a very reasonable accommodation to ask for. With luck they’ll understand that attempting to subvert the ADA will be a lot more trouble than making the accommodation.
posted by Tell Me No Lies at 4:42 PM on July 20, 2020 [4 favorites]

One alternative to consider is short term medical leave/FMLA to give you some time away from work to de-stress and plan your next steps. If your company has an employee assistance program it can be a great resource for connecting you to a mental health provider, and your HR department can give you more information about what specific programs you might qualify for.

I think that you have nothing to lose by going big here - after all, what's the worst they can do, fire you? Schedule a meeting with your supervisor, their supervisor, or whoever would be most relevant at your company. Document in excruciating detail how much overtime you've worked between the calls and covering shifts, crunch the numbers, then tell them that you want out of on call duties or a generous pay increase. They might reject both requests outright, but I think that they understand the value of what you do quite well but will never be bothered to do anything about it unless you cause a fuss. Someone has to take over your on call duties if you leave, and I bet that someone (or someones) knows quite well that your job sucks and doesn't want to do it. It's not clear to me how much you want to stay at this company in general, but if you're interested in making it work in the long term you could try to negotiate a compromise where X number of people rotate on call duties on a weekly basis; at the very least it would give you more breathing room to look for a new job.
posted by fox problems at 5:46 PM on July 20, 2020 [7 favorites]

Who takes the crap, I mean calls when you are on paid vacation? They are your ally here. They KNOW how much that part of the job is a huge burden. At least in the short run, they would have to do the job until a suitable replacement is found. I happen to think that they will find someone willing to do the job, but that person will not be a 23 year employee. They will have a rotating 2 year life.

As for getting unemployment, I think it a hard road. I do think it is a possibility, but I have no experience with achieving that objective. Perhaps a covid angle could be used?
posted by AugustWest at 7:02 PM on July 20, 2020 [1 favorite]

Having worked for a group home for 23 years, I avoided management for the all of the reasons you listed. My supervisor and most of the co-ordinators left for those reasons. The company doesn't care if they shorten your life with stress. You may have some bargaining power, but you might not. Start seeing a therapist so you can get FMLA. Good luck.
posted by Issithe at 7:55 PM on July 20, 2020 [2 favorites]

As others have said, the real answer here is to consult a lawyer.

But I'll give you an anecdote that may help you feel optimistic about your prospects of getting unemployment: I quit a job where I dealt with rampant sexism on a daily basis. I had to go in front of an administrative law judge, because the company did contest my application for unemployment, saying it was a voluntary quit. But I won, and I'm very glad I went to the trouble.

What my win hinged on was that I had gone to HR to try to get them to help resolve the sexism, and they had not done so. They didn't even bother speaking to two people who witnessed the behavior I complained about. And I was punished for speaking out, both overtly and covertly.

In my case, I didn't consult a lawyer, because I was so demoralized that I didn't think I could win, and I thought I would feel even more bereft if I'd sunk money into legal fees.

But I think it's probably better to consult a lawyer before you do anything else, especially if you have decent savings. They may have suggestions for how to word the letter effectively. It certainly seems like a good idea to establish the effect your stressful employment has on your health.

I wish you the very best of luck. So many employers treat workers like automatons. We need to push back against the idea that we all exist just to work and our health and well-being doesn't matter.
posted by nirblegee at 8:24 PM on July 20, 2020 [1 favorite]

What would happen if you phrased it as a statement rather than a request? “I have historically answered out of hours calls and requests but I will no longer be able to do so. I hope you understand.” (Note one point of my phrasing there is the implication that you were doing it out of the goodness of your heart. If they want to argue that you must, make them work for it.) You can continue down the ‘it won’t be possible’ line as much as necessary.

If that is unacceptable to the point that they want you gone, I believe you’d be covered by the comments above (but, if you want to play that game with confidence, go talk to someone who knows employment law, because I certainly don’t).
posted by How much is that froggie in the window at 8:26 PM on July 20, 2020 [3 favorites]

At the very least you could propose that more people should be on the OnCall rotation. If there are 4 people who can each take a week at a time, then your job is only shitty one week a month. Pro tip: rotation change day is on Wed so it leaves the weekends intact.
posted by CathyG at 8:46 PM on July 20, 2020 [1 favorite]

If you have been working unpaid when not at work, you may be owed pay. Your state has a labor department, probably under the attorney general's office/ web site. Contact them. You'll likely need a lawyer, but the Labor Dept is a good 1st step.

Do you have sick pay? Do you have Disability coverage? If your doctor will support you, you may be able to do out on sick leave and use that time to find other work.

Get copies of your job description, and any employment policies and take them home/ email them to a non-work email/ put them on a flash drive; they may be useful.

Does your company have an Employee Assistance Program(EAP)? They can be very helpful.
posted by theora55 at 4:51 AM on July 21, 2020

Yeah, definitely consult a lawyer. From what you have described thus far, it's unclear that you qualify as an exempt employee under the FLSA. Qualification is based on the work you perform, not your job title. If you are properly classified nonexempt, you are likely owed a lot of overtime money and at the very least this could be used as leverage to get rid of the 24/7 on-call aspect of your job (or to get paid for that time). More info from the Department of Labor here. As I understand it, you don't have to be paid for simply being "on call" unless that prevents you from doing anything else. But I do think you would have to be paid for the time you actually work after hours as a result of being on call.
posted by slkinsey at 7:16 AM on July 21, 2020

The standard for what counts as the kind of misconduct that disqualifies you from receiving UI varies slightly from state to state, but in general being unable to do your job to their satisfaction is not disqualifying. Neither is non-work-related misconduct that they feel merits firing.

While the parallels are not exact, the Oklahoma Unemployment Security Commission publishes sanitized decisions as to what they have in the past considered disqualifying and what they have not. While it may not map perfectly to your own state, it can be used to give you a general idea of how various scenarios are seen.

I can say with certainty that being medically unable to, say, come in at 8AM, and their refusal to accommodate such a condition when it doesn't otherwise impact your ability to do your job duties is not disqualifying in at least one state well known for being both anti-employee and stingy in terms of benefits. You will be disqualified if the medical condition renders you unable to work, however, so the precise wording you use in your application can make a big difference.

While constructive dismissal is a thing, it is better if you don't quit. You can resign in lieu of an imminent firing without affecting your eligibility, but it doesn't sound like they are about to send you packing.
posted by wierdo at 1:28 AM on July 22, 2020