Business Lawyer Asheville and WNC

Surprisingly, whether an employee has quit the employment, or was discharged by the employer, was often the main issue in the hearings I conducted while working for the NC unemployment office as an appeals judge. Discharging an employee, for an employer, can be difficult and unpleasant; for an employee, quitting a job isn’t always an easy choice.

In earlier blog posts I discussed how, as an appeals referee, I would analyze discharge cases (HERE) and quit cases (HERE) differently. In this article I will discuss why an ambiguous severing of the employment relationship can take place, and give a few examples of common situations that occur.


For unemployment benefits purposes the circumstances of the severing of the relationship will determine whether the employee is entitled to payments, or the employer’s account remains uncharged. The label that the parties give to the circumstances, while instructive, do not control the analysis. At DES we worked with a presumption that unless the employer gave a clear, unequivocal discharge of the claimant, we would treat the case as a “quit.” It’s not so easy, though, because we all know employers can give unclear messages about the future status of the relationship.

Thus, two examples:


Happens everywhere, not just construction sites. The supervisor at a construction site and a marginally decent worker don’t get along. For whatever reason, they’re always arguing. Finally one day during lunch break there’s a huge argument. The supervisor tells the employee he’s no good, he can’t do his job properly, and that “I don’t think we can keep working together like this” or some such indecisive remark.

The employee, defending himself, says that the supervisor is always riding him, lets other people get away with worse behavior, and yells, “I can’t work with you anymore” and storms off the job site and doesn’t come back.

Did he quit? Did the supervisor discharge him? It’s hard to say. The type of analysis I used when working for DES often depended on the initial “quit or discharge” determination. Factors I would look to in this situation include thing such as, did the employer have a process for progressive discipline, was the employee already at a later step in the process (i.e., was the next step discharge), did the supervisor finalize a discharge under the written disciplinary process, or did the employer treat the employee as a “no call no show” after the event?


Also, what has the employer done in the past with similar circumstances; and was there a history with this particular employee where a similar event would happen and he’d be allowed back to work? Ironically, I would often ask the employer “would he be allowed back to work right now” and often as not the answer would be “yes”.

From the employee’s point of view, I would question him as to whether he understood the supervisor’s comments as a discharge from the employment, or whether he had no intention of returning to the work site after he left that day. Did the employee contact the employer afterwards to inquire if s/he was still employed (often the employee will inquire as to why s/he has not been given shifts for the next pay period).

Even if the answer is “none, we thought you quit” I still would go through the factual analysis. From the facts that come out, it’s then up to the hearing officer to make that initial determination of “quit or discharge” before deciding if unemployment benefits are payable.


I disliked these cases because more often than not, both parties were fudging their testimony and/or documents (including, as noted above, the ambiguous text messages). Scenario: employee gets pregnant. Goes on leave of absence under the company’s LOA policy. Doesn’t return to work after the approved leave expires. Again, there’s usually some ambiguity in communication involved.

The analysis hinges on the facts of any particular case. Did the employer try to contact the employee prior to the LOA expiring to inquire about her return to work status, and did the employee respond. Conversely, did the employee inquire about getting back on the schedule and what was the employer’s response.

At some point the employer has to remove the employee from the payroll because of workers comp, tax, accounting reasons. When was this done and what reason was given? Can the parties document any of the communications and if so, what do the contemporaneous documents (often texts) show?

And finally, if the employee is physically unable to return to work after the LOA for some reason, such as a difficult birth, if the employer discharges that employee for failing to return to work, she may nevertheless be eligible for benefits because the reason for the discharge was not due to a willfull, intentional disregard of the standards of conduct expected of that employee.


The unemployment benefits awarding process analyzes employment separations differently than people commonly think of when the relationship is broken. This is because the statute defines when benefits are available, not whether “they were a bad employee” or not. Employers should keep this in mind when filing initial responses to unemployment claims; and when filing appeals to adverse rulings on claims. Make the case when the relationship is severed, document it, and present that evidence to the DES when responding to an initial claim for benefits.

Of course, consulting with me to take advantage of my experience working with the NC DES is a good starting point before the employer invests too many resources into defending claims improperly, or defending claims that are best left paid.

For all your businesses legal needs, call me in Asheville, Hendersonville, Fletcher, Waynesville, and all of Western North Carolina at (312) 671-6453

Email me at: palermo@palermolaw.com.

Be sure to check out my other blog posts HERE.  Be sure to listen to my podcasts with Matt Mittan at BizRadio.US