A worker in Nebraska can be penalized on their unemployment benefits for two reasons:
- they quit their job without good cause, or
- they committed misconduct in connection with their employment.
Why it is better to be fired than to quit
If you are fired, your employer must be able to prove that you committed misconduct in connection with your employment. In layman’s terms, they have to show that you made a decision or decisions to intentionally disregard reasonable standards related to your job. However, my experience is that if you appeal an adjudicator’s initial decision, many employers don’t understand they have the burden to prove that it is more likely than not that you did something wrong. Also, oftentimes managers and HR professionals do not understand the nuts and bolts of how to prove their case.
But, if you quit, then you have to prove that you quit for good cause. Nebraska law defines good cause.
This puts the burden on you to prove the case. This means that not only do you have to come up with an argument supported by the law and the facts to persuade the judge, you also have to make sure those facts get into evidence. This is difficult for a non-lawyer to do.
The difficulty of proving you quit for good cause is especially challenging if you feel that you are being subject to a hostile environment or being bullied at work. First of all, if harassment is motivated by anything other than sex, race or age, then that quit would not be covered by the Nebraska unemployment law. Even if the harassment is motivated by sex, race or age, the law in Nebraska that behavior that is “merely unpleasant” isn’t enough for courts to find a hostile environment. Even experienced lawyers can have difficulty proving hostile environment harassment, so it would be even more difficult for a lay person to prove such a case. Also if you believe you are being forced to quit, you will probably also have to show that your pay and/or responsibilities have been changed for the worse.
Many times manual laborers quit jobs because management puts them in jobs management knows they can’t do. However, in order to prove a quit for good cause, the employee would probably have to show the requirements of the job exceeded the restrictions given by a doctor. If a worker tells their doctor to clear them for work without restrictions before they are ready to come back full duty, then it will be difficult even for a lawyer to prove that the employer forced the employee to quit.
I resigned instead of being fired. Who has the burden of proof then?
The question of whether you resigned or whether you were fired boils down to who initiated the separation of employment. If your employer suggested that you resign or quit, then the law will deem that a termination, and the employer will have to prove that they fired you for misconduct. If you take the lead in quitting, then it’s your burden to show you had good cause. One trap employees can fall into is assuming that if they get written up or disciplined they are going to get fired, so they just quit. Nebraska law states that quitting in a situation like that is quitting without good cause. No call, no shows are also deemed to be quitting without good cause. The best way to beat a no call, no show would be to use phone records to show that you did in fact call in your absences. You would likely need other documentation to show that you were calling in for good cause such as illness or a family emergency.