Employees can be found eligible for unemployment benefits while suspended

by Larry Clark

The employer had a tradition in which a man dressed in a rooster costume would playfully hassle any worker who reported late for a shift.  When the rooster approached Marshall and "cock-a-doodle-do'ed," Marshall leaped at the rooster and began choking him.  Marshall was suspended without pay for six weeks.  During his suspension, Marshall filed for unemployment benefits.

The judge declared that Marshall was eligible for unemployment benefits!  Based upon Marshall's sworn testimony (along with the testimony of some of his coworkers) the judge wrote that the workers so hated the tradition that someone else would have attacked the rooster if the claimant hadn't!

Setting aside the comical spectacle of someone throttling a six foot chicken, many employers are surprised that it is sometimes possible to collect benefits during a suspension.  In most states, a claimant who is suspended without pay meets the definition of being unemployed.  The judge used the same eligibility standards in this suspension case as would have been applied in a discharge case.  That is, the judge decided that the reason for the suspension did not meet the definition of disqualifying misconduct (see the misconduct section in the FAQ).

Suspended workers actually have a somewhat better chance of being found eligible for benefits than if they had been discharged.  This is true, in part, because the act of suspending is often the next-to-last (not the last) step in an employer's progressive discipline procedure.  Moreover, even when it is not a required step in a progressive discipline policy, a disciplinary suspension is often a discretionary step the employer utilizes when the final act is not viewed by them as reprehensible enough to justify immediate discharge.

Isolated incidents of poor judgment are normally not disqualifying.  If Marshall had previously engaged in similar behavior, or if the evidence had shown that he actually intended to inflict serious harm on the rooster, the judge would likely have disqualified him from collecting unemployment benefits.

Larry Clark is a principle member of Employer Advocates LLC, and has been in the unemployment cost control industry for 35 years.

Disclaimer:  The information contained in the examples given on this page is general in nature and is not intended as legal advice.  There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples.  Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.

The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.