In 2010 an employee at InnCom – a Connecticut company which made management software for hotels – approached her supervisor and asked to be fired so she could “take it easy for a while” and collect unemployment. The supervisor refused saying that she was a good employee and would not fire her for such a reason.
The employee quit and a few weeks later InnCom received notice from the Connecticut Labor Department that she had been approved for unemployment benefits. The company appealed the decision but was overruled when the employee cited a “hostile work environment.”
This is according to Duane Buckingham, founder and former CEO of InnCom before the company was sold.
“Nothing, absolutely nothing, could have been further from the truth,” Buckingham says.
The company could have fought the appeal further but decided the effort and cost would not be worth it. “We wrote off the resulting increase in our unemployment tax ‘contribution’ from the fraudulent claim, because it was simply not worth the expense of the effort to further contest it.”
An employee can voluntarily separate from their employer and still receive unemployment benefits if the cause of separation was due to, among other things, a “hostile work environment.” So what constitutes a hostile work environment and what does the Connecticut Department of Labor use to determine whether or not such an environment exists?
Legally, a hostile work environment must be “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” according to precedent set by the decision Brittel v. Department of Correction.
Connecticut regulations also state that it is required an employee “expressed his or her dissatisfaction with the working condition to the employer and unsuccessfully sought a remedy prior to resigning.”
Anne Rugens, principle attorney with the Connecticut DOL says that questions asked of the claimant “vary from case to case,” but that the burden of proof is ultimately on the claimant to show they “left the position after exploring reasonable alternative to separating from employment.”
However, an employee does not have to take their concerns to their employer if doing so would be “futile,” at which point “he or she is relieved of exploring all possible alternatives.”
Futility is also determined on a case by case basis, however, an example would be if an employee was being harassed by the head of the company and therefore had no managerial recourse.
Richard Siegel, president of the Unemployment Tax Management Corporation, says that “theoretically” the burden of proof is on the claimant. However, “practically, the burden is placed on the employers to show that such hostile conditions didn’t exist.”
Because claims of hostile work environment often involve undocumented incidents of verbal harassment or bullying in the workplace. The claims can be difficult to prove and even more difficult for an employer to disprove.
“Credible testimony is sometimes enough,” says Rugens, “depending, of course, on what the employer may provide as evidence to rebut the claimant’s testimony.”
For its part, the DOL is working to update the method by which employers can appeal claims and will roll out a new online appeals system. Currently appeals are typically made over the phone, which can save employers the time and money of having travel and appear before a referee.
Siegel says in order to prove a hostile work environment claim for unemployment, a claimant must have acted as a “prudent individual” and sought to resolve the workplace issues with management. But, he says, a referee will often err on the side of the claimant at the initial claim and the onus of responsibility is on the employer to dispute a false claim.
Figures provided by the DOL show that employers have a 40 percent success rate when they appeal an unemployment claim. However, many employers do not follow through with the process and thereby lose the appeal by default.
“You’re seeing frustration on the part of the employers who don’t have a good grasp of what to prove and how to prove it.”