If your supervisor tells you there is no work but does not officially lay you off, can you still file for unemployment?

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If your supervisor tells you there is no work but does not officially lay you off, can you still file for unemployment?

My husbands employer became slow after the holidays. Employees went from working 80 hour every 2 weeks down to 48 every 2 weeks. After about a month of this my husband’s supervisor told him that they didn’t have enough work for him, but to call on a daily basis to see if they had work coming in. After 2 weeks of no work (and no income) we applied for unemployment. Now the company is saying that he quit and was not laid off. Are they legally bound to pay unemployment for lack of work?

Asked on March 22, 2011 under Employment Labor Law, New Mexico

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

There's no simple answer, since this a question of fact. There are clearly times when not having work for a short period would not be considered being constructively, or effectively, terminated--for example, losing out a shift or three. On the other hand, there are clearly times when not having work for prolonged periods would be considered being fired, no matter what the employer said--for example, not work for 6 months. The case you describe falls in between those two extremes, and alot will therefore turn on the other facts in the case--for example, a steady decrease in work is in your favor, since it suggest that the work was drying up and going away; but if other people were out of work for 2 or 3 weeks then called back, that would act against you. You can and should appeal any negative determination, and muster all the evidence you can that it was reasonable to think that your husband had effectively been fired or laid off.


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