The Truth about unemployment in massachusetts

One of the first questions people have when they lose a job is "can I get unemployment?"  Unemployment benefits are a safety net that most people have used at one point or another, but there are a lot of common misunderstandings about how these benefits work and who is eligible.  Here are the top 5 myths about unemployment in Massachusetts:

If I am fired for cause I cannot collect unemployment:  This is not true, except in certain circumstances.  You will only be denied unemployment benefits if you were fired for deliberate misconduct.  Deliberate misconduct includes intentional behavior against the employer's interest or violation of a clear and uniformly enforced policy.  It does not include alleged poor performance, employee negligence, or absence or tardiness for legitimate reasons (so long as the employer is notified- a "no call/no show situation without a compelling reason could be found to be deliberate misconduct).

If I accept a severance payment I have to wait to collect unemployment: This is only partially true, and only in the rare situation where an employer provides a severance payment without requiring you to sign a release of potential claims in return.  Most severance agreements include a release (if you are not sure what to look for, it is generally a long and dense paragraph with references to dozens of statutes saying you  release, discharge, and/or hold the employer harmless for those claims).  If you have signed a release, the money you receive is not considered salary continuation, but instead the money you were paid in exchange for the release, and it does not count against your unemployment.  This means if you have a severance agreement with release of claims, you could be collecting the payments from your employer under that agreement at the same time you are collecting unemployment benefits.  You may have to show the severance agreement to the DUA, and you may be initially denied, but ultimately you should be entitled to benefits.

I should accept my employer's offer to resign instead of having a termination on my record: Be very careful about this.  If you leave employment voluntarily, and cannot show that it was due to cause attributable to your employer, you may be denied unemployment benefits.  In contrast, a termination "on your record" is in reality only on the record in your personnel file with your former employer, which itself has some privacy protections.  Unless you anticipate applying for a job within the same organization or company, it is highly unlikely that a prospective employer will ever see the stated nature of your termination.  Also, a little known fact is that the information you and your employer submit to the DUA in connection with an application for unemployment benefits is confidential and protected by statute, and not a public record.  If you have tendered a resignation explicitly in lieu of termination, when you apply for unemployment you should state not that you resigned but that you accepted a resignation in lieu of termination, so the DUA knows it was not actually a voluntary termination.

I can't collect unemployment because I was paid as a 1099/independent contractor:  This would be true if you were properly classified as an independent contractor under Massachusetts law, but the truth is that most people paid as 1099 employees should be considered W2 employees (for more information about the rules on this, click here).  If, for example, your work was subject to significant supervision and control, or if you were not also in the business of offering the same services to others, or if the work you were doing was core to the employer's business, you probably should have been classified as an employee.  You can apply for unemployment even if your employer claims you are ineligible- you may be initially denied, but you can request a hearing, and if the DUA finds that you met the statutory definition of an employee, you should be able to collect benefits.

Once I apply for benefits, I will get all important notices in the mail:  Not necessarily!  We have found many people check the box for electronic notifications without realizing that means they will not get hard copy notices of important things like hearing dates, or determinations of eligibility.  More than once we have had a client whose email notifications went into a spam folder, or to an infrequently checked email account, and missed important deadlines for appealing an adverse decision or appearing for a hearing.  If you check this box, make sure you are actively checking the email address you provided, including your clutter and spam folders.

You should not wait to apply for unemployment- if you are denied and later go to a hearing and are awarded benefits, those benefits will be back paid to the date you applied, not to the date of your termination.  So while you may still have other questions about your termination- whether it was a wrongful termination, whether you will be held to agreements you signed at the beginning of your employment (i.e., a non compete agreement), or whether you have any recourse against your former employer- you should apply for benefits on the first date you are allowed to after your termination.

For more information, you can call us at (781) 784-2322, or book a free consultation here.