2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 8 - Employment Security
Article 7 - Benefits
§ 34-8-194. Grounds for Disqualification of Benefits

An individual shall be disqualified for benefits:

1. 1. For the week or fraction thereof in which the individual has filed an otherwise valid claim for benefits after such individual has left the most recent employer voluntarily without good cause in connection with the individual's most recent work.
   2. Good cause in connection with the individual's most recent work shall be determined by the Commissioner according to the circumstances in the case; provided, however, that the following circumstances shall be deemed to establish such good cause and the employer's account shall not be charged for any benefits paid out to an individual who leaves an employer:
      1. To accompany a spouse who has been reassigned from one military assignment to another; or
      2. Due to family violence verified by reasonable documentation demonstrating that:
   3. Leaving the employer was a condition of receiving services from a family violence shelter;
   4. Leaving the employer was a condition of receiving shelter as a resident of a family violence shelter; or
   5. Such family violence caused the individual to reasonably believe that the claimant's continued employment would jeopardize the safety of the claimant or the safety of any member of the claimant's immediate family.

      For purposes of this subparagraph, the term "family violence" shall have the same meaning as in Code Section 19-13-1 and the term "family violence shelter" shall have the same meaning as in Code Section 19-13-20.

   6. To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual.
   7. When voluntarily leaving an employer, the burden of proof of good cause in connection with the individual's most recent work shall be on the individual.
   8. Benefits shall not be denied under this paragraph to an individual for separation from employment pursuant to a labor management contract or agreement or pursuant to an established employer plan, program, policy, layoff, or recall which permits the individual, because of lack of work, to accept a separation from employment;
2. 1. For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual.Notwithstanding the foregoing, in the Commissioner's determination the burden of proof of just discharge or suspension for cause as set forth shall be on the employer and the presumption shall be with the employee; provided, however, that:
      1. An individual shall secure employment and show to the satisfaction of the Commissioner that such individual has performed services in bona fide employment and earned insured wages equal to at least 12 times the weekly benefit amount of the claim and has lost that job through no fault on the part of such individual, if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:
   2. Intentional conduct on the premises of the employer or while on the job which results in a physical assault upon or bodily injury to the employer, fellow employees, customers, patients, bystanders, or the eventual consumer of products; or
   3. Intentional conduct that results in the employee's being discharged for, and limited to, the following:theft of property, goods, or money valued at $100.00 or less; and
      1. An individual shall secure employment and show to the satisfaction of the Commissioner that he or she has performed services in bona fide employment and earned insured wages equal to at least 16 times the weekly benefit amount of the claim if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:
   4. Intentional conduct by the employee which results in property loss or damages amounting to $2,000.00 or more; or
   5. Intentional conduct that results in the employee's being discharged for, and limited to, the following:theft of property, goods, or money valued at over $100.00, sabotage, or embezzlement.
   6. An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines:
      1. The individual made a good faith effort to perform the duties for which hired but was simply unable to do so;
      2. The individual did not intentionally fail or consciously neglect to perform his or her job duties;
      3. The discharge occurred because of absenteeism and the absences were caused by illness of the claimant or a family member, unless the claimant has without justification failed to notify the employer or the absence for such illness which led to discharge followed a series of absences, the majority of which were attributable to fault on the part of the claimant in direct violation of the employer's attendance policy; provided, however, that no waiver of an employee's rights under the federal Family and Medical Leave Act of 1993, as amended, or any other applicable state or federal law shall be construed under this division;
      4. The discharge occurred as a violation of the employer's rule of which the claimant was not informed by having been made aware thereof by the employer or through common knowledge. Consistency of prior enforcement shall be taken into account as to the reasonableness or existence of the rule and such rule must be lawful and reasonably related to the job environment and job performance; or
      5. Except for activity requiring disqualification under paragraph (4) of this Code section, the employee was exercising a protected right to protest against wages, hours, working conditions, or job safety under the federal National Labor Relations Act or other laws.
   7. For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended for violation of the employer's drug-free workplace policy as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification under this subparagraph, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then become unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner's determination the burden of proof of just discharge or suspension for cause as set forth in this subparagraph shall be on the employer and the presumption of eligibility shall be with the employee; provided, however, that in cases where a drug or alcohol test is utilized to prove a violation of the employer's drug-free workplace policy:
      1. The employer's burden of proof of just discharge or suspension shall be presumed met if the individual fails a drug screening test which is required by terms of the employer's drug-free workplace policy and said policy complies with the provisions of Article 11 of Chapter 9 of this title, other substantially equivalent or more stringent standards established by federal law or regulations, or with rules and regulations prescribed by the Commissioner;
      2. The laboratory test results, including but not limited to, documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter, and such evidence shall create a rebuttable presumption that the individual violated the employer's drug-free workplace policy; provided, however, that any other evidence relating to the issue of eligibility and the provisions of this subparagraph may be received in person or by telecommunications at the hearing; and
      3. Laboratory test results submitted by the individual, including but not limited to documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter;
3. 1. If, after the claimant has filed an otherwise valid claim for benefits, the claimant has failed without good cause either to apply for available, suitable work when so directed by an employment office or the Commissioner or to accept suitable work when offered to the claimant by any employer.Such disqualification shall continue until he or she has secured subsequent employment for which the individual has earned insured wages equal to at least ten times the weekly benefit amount of the claim and has lost that job through no fault on the part of the individual.
   2. In determining whether or not any work is suitable for an individual, the Commissioner shall consider the degree of risk involved to his or her health, safety, and morals; his or her physical fitness and prior training; his or her experience and prior earnings; his or her length of unemployment and prospects for securing local work in his or her customary occupation; and the distance of the available work from his or her residence. The length of unemployment shall be given full consideration and, after an adjustment period, the claimant must accept work involving less competence and at a lower remuneration.If a claimant has received ten weeks of benefits during his or her current period of unemployment, no work otherwise suitable shall be considered unsuitable because of prior training, experience, prior earnings, or level of compensation, provided such compensation is equal to or exceeds 66 percent of the claimant's highest calendar quarter base period earnings; provided, however, that such compensation must be equal to or greater than the minimum wage established by federal or state laws.
   3. Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work:
      1. If the position offered is vacant due directly to a strike, lockout, or other labor dispute;
      2. If the wages, hours, or other conditions of the work offered are less favorable to the individual than those prevailing for similar work in the locality; or
      3. If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;
4. For any week with respect to which the Commissioner finds that his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she is or was last employed.If, in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this paragraph, be deemed to be a separate factory, establishment, or other premises.This paragraph shall not apply if it is shown to the satisfaction of the Commissioner that:
   1. He or she is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work;
   2. He or she does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; or
   3. A lockout has occurred following the expiration of the most recent working agreement without any offer of or refusal to continue that agreement during continued negotiations for a new agreement acceptable to employer and employee.

      When a stoppage of work due to a labor dispute ceases and operations are resumed at the factory, establishment, or other premises at which the employee is or was last employed but the employee has not been restored to such last employment, the employee's disqualification for benefits under this paragraph shall be deemed to have ceased at such time as the Commissioner shall determine such stoppage of work to have ceased and such operations to have been resumed. Benefits shall not be paid for any week during which the employee is engaged in picketing or is a participant in a picket line at the factory, establishment, or other premises at which the employee is or was last employed even though the stoppage of work shall have ceased and operations have been resumed;

5. For any week with respect to which the employee is receiving or has received remuneration in the form of:
   1. Wages in lieu of notice, terminal leave pay, severance pay, separation pay, or dismissal payments or wages by whatever name, regardless of whether the remuneration is voluntary or required by policy or contract; provided, however, such remuneration shall only affect entitlement if the remuneration for such week exceeds the individual's weekly benefit amount. Remuneration for accrued but unused annual leave, vacation pay, sick leave, or payments from employer funded supplemental unemployment plans, pension plans, profit-sharing plans, deferred compensation, or stock bonus plans or seniority buyback plans shall not affect entitlement.In the case of lump sum payments or periodic payments which are less than the individual's weekly wage, such payments shall be prorated by weeks on the basis of the most recent weekly wage of the individual for a standard work week; or
   2. Compensation for temporary partial or temporary total disability under the workers' compensation law of any state or under a similar law of the United States;
6. For any week with respect to which he or she has received or is seeking unemployment compensation under an unemployment compensation law of another state or of the United States; or
7. If while attending a training course as provided in Code Section 34-8-195, he or she voluntarily ceases attending such course without good cause.Such disqualification shall continue pursuant to the provisions of paragraph (1) of this Code section.However, if any individual is separated from training approved under Code Section 34-8-195 due to the individual's own failure to abide by rules of the training facility, he or she shall be disqualified for benefits under the provisions of paragraph (2) of this Code section.

(Code 1981, §34-8-194, enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1996, p. 693, § 4; Ga. L. 2005, p. 219, § 1/HB 404; Ga. L. 2005, p. 1200, § 9A/HB 520; Ga. L. 2015, p. 830, § 4/HB 117; Ga. L. 2019, p. 527, § 6/HB 373.)

The 2015 amendment, effective May 6, 2015, rewrote paragraph (1).

The 2019 amendment, effective May 6, 2019, deleted "and regarding which the claimant has been advised in writing, prior to any of the absences, that unemployment benefits may be denied due to such violations of the employer's policy on attendance" following "attendance policy" in the middle of division (2)(B)(iii).

- For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005). For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For note discussing administrative records and reports of public employment agencies with emphasis on the critical role of the employer, and advocating a qualified, rather than absolute, privilege placed on confidential employer reports, see 11 Mercer L. Rev. 345 (1960). For comment on Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950), see 13 Ga. B. J. 348 (1951). For comment on Meakins v. Huiet, 100 Ga. App. 557, 112 S.E.2d 167 (1959), see 11 Mercer L. Rev. 395 (1960).

ANALYSIS

• General Consideration
• Disqualification
• Cause for Leaving Employment

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-158, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

- The legislative intent, that only the involuntarily unemployed whose unemployment is not the result of their own fault are entitled to compensation, is the foundation upon which the entire act rests; and that intent is supreme and controlling in the construction of all paragraphs and sentences. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950), for comment, see 13 Ga. B. J. 348 (1951) (decided under Ga. L. 1937, p. 806).

Intent of the legislature was to pay unemployment compensation during periods of unemployment to those workers whose unemployment is involuntary and is not the result of their own fault. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950); Smith v. Caldwell, 142 Ga. App. 130, 235 S.E.2d 547 (1977); Colbert v. Caldwell, 144 Ga. App. 220, 240 S.E.2d 769 (1977); Carter v. Caldwell, 151 Ga. App. 687, 261 S.E.2d 431 (1979) (all decided under Ga. L. 1937, p. 806).

- To disqualify for benefits, the stoppage of work must exist because of a labor dispute; in other words a labor dispute must be the prime, efficient, proximate, motivating cause of unemployment. The evidence must at least preponderate to the conclusion that had there not been a labor dispute the work stoppage would not have occurred, whether or not other things combined with the dispute to bring about the unemployment. Since the general statutory enactment is one granting benefits upon proof of unemployment and other conditions of eligibility, an employer seeking to deny benefits to one otherwise eligible because of an excepting clause within the act has the burden of showing by a preponderance of the evidence that the employee comes within such exception. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806).

- When unemployment benefits were denied to an employee who was discharged for striking a co-worker and when the Department of Labor Board of Review failed to make a critical factual determination as to provocation pursuant to department rules, it was error for the superior court to make new factual determinations on the issue, but, rather, the case should have been remanded to the department for determining provocation. TNS Mills v. Russell, 213 Ga. App. 14, 443 S.E.2d 658 (1994).

- Since the general statutory enactment is one granting benefits upon proof of unemployment and other conditions of eligibility, an employer seeking to deny benefits to one otherwise eligible because of an excepting clause within the law has the burden of showing by a preponderance of the evidence that the employee comes within such exception. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

- Misconduct constituting fault on the employee's part must be deliberate, willing, knowing, and in violation of an employer's rule that has been uniformly enforced. Millen v. Caldwell, 253 Ga. 112, 317 S.E.2d 818 (1984) (decided under Ga. L. 1937, p. 806).

- Because disqualification of unemployment compensation benefits requires deliberate, conscious fault by the employee, an employee's bona fide effort to comply with an employer's orders is not consistent with a finding of fault. Johnson v. Butler, 323 Ga. App. 743, 748 S.E.2d 111 (2013).

- It has not been shown that the United States Labor Department guidelines are controlling in questions involving the state implementation of the unemployment compensation programs. Carter v. Caldwell, 151 Ga. App. 687, 261 S.E.2d 431 (1979) (decided under Ga. L. 1937, p. 806).

- Severance allowance does not necessarily constitute wages in lieu of notice. Meakins v. Huiet, 100 Ga. App. 557, 112 S.E.2d 167 (1959) (decided under Ga. L. 1937, p. 806).For comment, see 11 Mercer L. Rev. 395 (1960).

- "Factory, establishment, or other premises" are not separate when their function is indispensable and inseparable from the manufacturing process, when the failure to function upon the part of either would defeat the single objective of both; mere separate locations, regardless of distance, of the indispensable functions, cannot change them into "separate factories, establishments, or other premises." Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950) (decided under Ga. L. 1937, p. 806).For comment, see 13 Ga. B. J. 348 (1951).

- Superior court erred in reversing the board's decision that the employer failed to prove that claimant sexually harassed employees, because there was evidence to support the board's findings of fact and the hearing officer properly gave more weight to the sworn testimony than to the hearsay statements about sexual harassment. McGahee v. Yamaha Motor Mfg. Corp., 214 Ga. App. 473, 448 S.E.2d 249 (1994).

- When following an administrative hearing on an employee's claim for state unemployment compensation benefits, the superior court found that the employee had been terminated for cause, collateral estoppel applied to bar revisiting the alleged reasons behind the employee's dismissal in a discriminatory discharge case brought under federal law. Shields v. Bellsouth Adver. & Publ'g Corp., 273 Ga. 774, 545 S.E.2d 898 (2001).

- Decision denying unemployment benefits to a discharged claimant under O.C.G.A. § 34-8-194 was reversed on appeal because the only evidence of the alleged violation of the employer's policy came by way of a patient's e-mail, which was inadmissible hearsay since the patient did not testify at the hearing. Robinson v. Butler, 319 Ga. App. 633, 737 S.E.2d 731 (2013).

- Individual shall not be disqualified for unemployment compensation benefits if, based on the rules and regulations, the individual made a good faith effort to perform the duties for which hired but was simply unable to do so, and the individual did not intentionally fail or consciously neglect to perform the job duties. Johnson v. Butler, 323 Ga. App. 743, 748 S.E.2d 111 (2013).

Cited in Peerless Woolen Mills v. Huiet, 69 Ga. App. 166, 24 S.E.2d 866 (1943); Huiet v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743 (1943); Abercrombie v. Ford Motor Co., 81 Ga. App. 690, 59 S.E.2d 664 (1950); Utica Mut. Ins. Co. v. Pioda, 90 Ga. App. 593, 83 S.E.2d 627 (1954); Huiet v. Wallace, 108 Ga. App. 208, 132 S.E.2d 523 (1963); Banks v. Huiet, 111 Ga. App. 607, 142 S.E.2d 421 (1965); Epps Air Serv., Inc. v. Lampkin, 229 Ga. 792, 194 S.E.2d 437 (1972); Caldwell v. Jones, 129 Ga. App. 893, 201 S.E.2d 823 (1973); Barnes v. Caldwell, 139 Ga. App. 384, 228 S.E.2d 325 (1976); Caldwell v. Corbin, 152 Ga. App. 153, 262 S.E.2d 516 (1979); Tucker v. Caldwell, 608 F.2d 140 (5th Cir. 1979); Kilgore v. Caldwell, 152 Ga. App. 863, 264 S.E.2d 312 (1980); Miller Brewing Co. v. Carlson, 162 Ga. App. 94, 290 S.E.2d 200 (1982); Brown v. Caldwell, 165 Ga. App. 743, 302 S.E.2d 359 (1983); Shields v. BellSouth Advertising & Publ'g Co., 228 F.3d 1284 (11th Cir. 2000).

Disqualification

Disqualification because of fault.

- There must be some fault chargeable to the employee in order to have a valid disqualification under this section. Smith v. Caldwell, 142 Ga. App. 130, 235 S.E.2d 547 (1977); Carter v. Caldwell, 151 Ga. App. 687, 261 S.E.2d 431 (1979) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-194).

Unless there is fault (an "offense") chargeable to the employee, there is no disqualification under this section. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674, 302 S.E.2d 596 (1983) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-194).

Superior court did not err by failing to apply O.C.G.A. § 34-8-194(2)(B)(ii) and (iii) because the employee, at the very least, consciously neglected to perform the employee's duties; despite the fact that the employee was able to perform the employee's job duties up until the employee was diagnosed with influenza, the evidence showed that the employee had still failed to complete support notes for over 50 percent of the employee's caseload. McCauley v. Thurmond, 311 Ga. App. 636, 716 S.E.2d 733 (2011).

- Evidence showing that an employee failed to attain the necessary proficiency does not demand a finding of failure through fault or conscious neglect. Smith v. Caldwell, 142 Ga. App. 130, 235 S.E.2d 547 (1977) (decided under Ga. L. 1937, p. 806).

Failure, through no fault of the employee, to perform the employee's job as expected does not serve as a basis for disqualification from unemployment benefits. Colbert v. Caldwell, 144 Ga. App. 220, 240 S.E.2d 769 (1977) (decided under Ga. L. 1937, p. 806).

Employee was not disqualified from entitlement to unemployment benefits, when the employee's violations of the employer's policy prohibiting overages or shortages in excess of $2 resulted from the employee's inability to perform the employee's job duties proficiently rather than from conscious neglect on the employee's part. Lamb v. Tanner, 178 Ga. App. 740, 344 S.E.2d 534 (1986) (decided under former § 34-8-158).

- Trial court erred in reversing the Department of Labor's denial of unemployment benefits as the employee was terminated for failure to improve the employee's communication with the staff and failure to provide the new lead mammographer with all relevant information for the new lead to perform the employee's job effectively, despite being counseled to do so. DeKalb Med. Ctr. v. Whittley, 327 Ga. App. 503, 759 S.E.2d 579 (2014).

- Benefits should not be denied to an employee who has been fired for failure to comply with unknown work requirements, or requirements which could not have been reasonably anticipated. Millen v. Caldwell, 253 Ga. 112, 317 S.E.2d 818 (1984) (decided under former § 34-8-158).

- When an employee engages in conduct which leads to the employee's incarceration, and because of the employee's inability to report to work the employee is dismissed from employment, the denial of unemployment compensation is the correct interpretation of the statutory mandate. Carter v. Caldwell, 151 Ga. App. 687, 261 S.E.2d 431 (1979) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-194).

- When the stoppage of the work is caused by a labor dispute, any employee or class of employees whose wages are involved in the dispute and would be affected by the result of the dispute is directly interested in the dispute and an employee so directly interested in the dispute or who belongs to a grade or class of workers who immediately before the commencement of the stoppage of the work consisted of members employed on the premises at which the stoppage occurred is disqualified from receiving the benefits for unemployment provided in Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-8-1 et seq.). Huiet v. Boyd, 64 Ga. App. 564, 13 S.E.2d 863 (1941) (decided under Ga. L. 1937, p. 806).

Stoppage of work means at the place of work rather than stoppage on the part of the individual worker. M.A. Ferst, Ltd. v. Huiet, 78 Ga. App. 855, 52 S.E.2d 336 (1949) (decided under Ga. L. 1937, p. 806).

To disqualify for benefits the stoppage of work must exist because of a labor dispute; in other words, a labor dispute must be the prime, efficient, proximate, motivating cause of the unemployment. The evidence must at least preponderate to the conclusion that had there not been a labor dispute the work stoppage would not have occurred, whether or not other things combined with the dispute to bring about the unemployment. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806).

- The law is more concerned with whether or not unemployment is chargeable to the claimants than with the method or means by which they bring it about. Obviously, the claimants would be disqualified if they cause their unemployment by direct action in simply walking away from their work stations and refusing to return. They are not allowed to accomplish the same result by indirection, in having their labor union authorize work stoppage in a parts-producing plant, which they know must inevitably compel work stoppage at their own plant. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950) (decided under Ga. L. 1937, p. 806).For comment, see 13 Ga. B. J. 348 (1951).

- Under the law of agency, the actions of union officials in allowing a strike is the action of the union members, just as effectively as if each of the claimants personally cast a vote in favor of that strike. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950) (decided under Ga. L. 1937, p. 806).For comment, see 13 Ga. B. J. 348 (1951).

- Employee who violates an employer's anti-drug policy may be disqualified from receiving unemployment benefits, even though the employer has not met the statutory requirements for establishing a drug-free workplace program. Georgia-Pacific Corp. v. Ivey, 250 Ga. App. 181, 549 S.E.2d 471 (2001).

- Automobile accident resulting in an employee's loss of the employee's usual mode of transportation, even though the accident was through no fault of the employee's own, still places the responsibility of providing transportation to and from work on the employee; thus, the employee was considered at fault for purposes of unemployment compensation. Roberson v. Tanner, 174 Ga. App. 128, 329 S.E.2d 210 (1985) (decided under former § 34-8-158).

Schoolteachers' failure to pass teacher certification tests did not disqualify them for unemployment compensation benefits, even though they did not take the test all of the times it was offered before the termination of their employment and did not participate in staff development services available to assist teachers in preparing for the test, when it was undisputed that each claimant did take the test several times and utilized other study aids. Tanner v. Golden, 189 Ga. App. 894, 377 S.E.2d 875 (1989) (decided under former § 34-8-158).

Schoolteacher who was advised to resign after the teacher's teaching certificate expired and after the teacher failed a competency exam three times was entitled to unemployment compensation even though the teacher could have taken the test on several other occasions but did not. Troup County Bd. of Educ. v. Daniel, 191 Ga. App. 370, 381 S.E.2d 586 (1989) (decided under former § 34-8-158).

Decision denying a teacher unemployment compensation was reversed on appeal because the teacher's failure to pass an exam required as a condition of employment after taking the exam eight times was not due to any conscious neglect or deliberate malfeasance which would have justified disqualifying the teacher from receiving benefits. Johnson v. Butler, 323 Ga. App. 743, 748 S.E.2d 111 (2013).

- When an employee was told that working overtime would be required of employees, and the employee was unable to work overtime due to child care problems but subsequently cured the problems, it could not be said that the employer showed that there was a reasonable expectation of termination when the employee cured the problems. Hence, the employee was entitled to benefits. Barron v. Poythress, 219 Ga. App. 775, 466 S.E.2d 665 (1996).

- There was some evidence to support the conclusion that the claimant was not entitled to unemployment benefits due to the claimant's failure to obey the employer's rules, which was grounds for disqualification for unemployment benefits under O.C.G.A. § 34-8-194(2)(A); evidence indicated that the claimant intended to leave the job due to the claimant's dissatisfaction with the claimant's assignment rather than complete deliveries as was required by the employer. Jamal v. Thurmond, 263 Ga. App. 320, 587 S.E.2d 809 (2003).

Department of Labor properly denied an employee unemployment benefits based on the employee's failure to obey the employer's policy to issue parking passes to students taking training courses on the employer's premises after being informed that a failure to do so would result in termination. Solinet v. Johnson, 280 Ga. App. 227, 633 S.E.2d 626 (2006).

Because there was some evidence to support an administrative hearing officer's conclusion that an employee failed to obey an employer's orders, rules, or instructions in dealing with a patient, and was therefore disqualified from receiving unemployment benefits under O.C.G.A. § 34-8-194(2)(A), the trial court erred in reversing the board of review's affirmance of that decision. MCG Health, Inc. v. Whitfield, 302 Ga. App. 408, 690 S.E.2d 659 (2010).

There was evidence to support the decision of the Georgia Department of Labor to disqualify an employee from unemployment compensation benefits on the ground that the employee's discharge was due to the employee's own fault because the initial claims examiner found that the employee had been fired for not following rules, orders, or the instructions of the employer when the employee failed to report for meetings to discuss the employee's job performance, and the administrative hearing officer agreed; the employee should have been aware that failing to meet work deadlines, entering partially blank supporting case notes, and ignoring the regional manager's direct communications and orders subjected the employee to termination. McCauley v. Thurmond, 311 Ga. App. 636, 716 S.E.2d 733 (2011).

- Employer failed to carry the employer's burden of showing that the employee was disqualified from unemployment benefits under O.C.G.A. § 34-8-194(2)(A) because of the employee's failure to report an arrest within a five-day deadline as the employee could not have reasonably expected that a short, immaterial delay in reporting the arrest would result in termination. Chisholm v. Ga. Dep't of Labor, 329 Ga. App. 188, 764 S.E.2d 432 (2014).

- Because no evidence supported a decision to deny a former employee unemployment benefits under O.C.G.A. § 34-8-194(2)(A), the trial court erred in affirming that decision; the former employer provided no evidence that the former employee intentionally failed or consciously neglected to perform the former employee's duties. Neither a hearing officer nor the Department of Labor Board of Review addressed the employee's contention that the former employee was unable to perform the job because the former employee could not find qualified subcontractors and did the best the former employee could given the former employee's resources. Skinner v. Thurmond, 294 Ga. App. 466, 669 S.E.2d 457 (2008).

Former employer failed to carry the burden of showing that a former employee was disqualified from unemployment benefits for the purpose of O.C.G.A. § 34-8-194, and the decision of the Georgia Department of Labor Board of Review to disqualify the employee was not supported by any evidence because the evidence did not support a finding that the employee's discharge could be attributed to conscious, deliberate fault in failing to arrange for child care when, after being informed on January 23, 2008 that the employee was required to go out-of-town on January 28, 2008, the employee promptly began efforts to secure child care, and the employee was terminated only two days after receiving notice of the project's start date; because the employee was in a lower-paying managing consultant position and not the constant-travel project lead position, the employee could not reasonably expect that an inability to confirm within 48 hours that the employee would travel on January 28, 2008 would result in termination. Davane v. Thurmond, 300 Ga. App. 474, 685 S.E.2d 446 (2009).

Because the only proof that an employer presented in the administrative proceedings was hearsay, the employer failed to prove by competent evidence that an employee was, in fact, terminated for violating the employer's policies and rules; therefore, the Board of Review of the Department of Labor erred in disqualifying the employee for benefits under O.C.G.A. § 34-8-194(2)(A). Teal v. Thurmond, 310 Ga. App. 312, 713 S.E.2d 436 (2011).

School district did not carry the district's burden of showing that the former employee came within the disqualification exception for unemployment benefits because the employee did not knowingly disobey the 2010 policy because the policy was not in effect when the employee was alleged to have violated the policy. Therefore, the employee was entitled to unemployment compensation. Slade v. Butler, 317 Ga. App. 688, 732 S.E.2d 543 (2012).

Department of Labor Board of Review erred in denying a former employee's claim for unemployment compensation benefits on the ground that the employee was at fault in causing the employee's unemployment because there was no evidence contradicting the employee's contention that the employee's order-picking errors occurred despite the employee's best efforts to perform the job in a satisfactory manner. Williams v. Butler, 322 Ga. App. 220, 744 S.E.2d 396 (2013).

To the extent that the employee's language and tone violated a standard of reasonable conduct, there was no evidence that the employer ever communicated such a standard to the employee or enforced such a standard with the employee or other employees and, thus, denial of unemployment benefits based on the employee's use of insubordinate language was erroneous. Barnett v. Ga. Dep't of Labor, 323 Ga. App. 882, 748 S.E.2d 688 (2013).

Nurse was entitled to unemployment benefits because, although the employer disapproved of the nurse's method, the evidence did not show that the nurse acted with deliberate, conscious fault in disobeying any policy when the nurse told a resident the nurse was going to administer a pain patch that had not been prescribed in an effort to determine if the resident was confused. Case v. Butler, 325 Ga. App. 123, 751 S.E.2d 883 (2013).

Trial court erred in upholding the Georgia Department of Labor's Board of Review's decision to disqualify the claimant because there was no evidence in the record that the claimant was at fault in the claimant's discharge, which occurred after a customer left the store without paying for merchandise, causing the claimant's register to be short funds. Thomas v. Butler, 330 Ga. App. 675, 769 S.E.2d 104 (2015).

Cause for Leaving Employment

Personal dislike.

- "Good cause" for voluntarily leaving employment cannot be established by solely referring to a personal dislike in working with another coworker. Moore v. Tanner, 172 Ga. App. 792, 324 S.E.2d 772 (1984) (decided under former § 34-8-158).

- When the record showed employee worked for two months under contested "unethical" conditions, employee accepted those conditions as part of the employee's working conditions; thus, disqualification for benefits was proper. Young v. Scott, 212 Ga. App. 572, 442 S.E.2d 768 (1994).

- If an employee, in fact, voluntarily quit a job because the work environment caused or aggravated a pre-existing medical condition to the extent that the employee either was unable to perform properly the employee's employment duties, or was unable to perform properly the employee's employment duties without unreasonable risk of harm to the employee's health due to continued employment, and that the employee timely notified the employer of the reason for the employee's decision, such voluntary quitting would be with due cause as a matter of law. Holstein v. North Chem. Co., 194 Ga. App. 546, 390 S.E.2d 910 (1990) (decided under former § 34-8-158).

- If, in fact, the employee quits a job, not because of health risk or inability to perform duties resulting from any existing medical condition, but to facilitate the employee's moving to a different locality, such voluntary quitting would be without due cause as a matter of law. Holstein v. North Chem. Co., 194 Ga. App. 546, 390 S.E.2d 910 (1990) (decided under former § 34-8-158).

- When employee was notified that the employee was to be transferred to California, and the employee quit the employee's job rather than move since the employee's spouse was not transferred and the cost of living was higher in California, this was not a good cause reason to voluntarily quit the job and thus unemployment benefits were denied because the employee, as a union member, worked under a collective bargaining agreement that authorized such transfers and did not call for spouse transfers or cost of living increases as a term of employment. Western Elec. Co. v. Ellison, 170 Ga. App. 565, 317 S.E.2d 595 (1984) (decided under former § 34-8-158).

- Individual who is absent from work due to compulsory process to attend a juvenile court proceeding for the individual's child is not at fault in the individual's discharge even though the individual may have previously demonstrated attendance problems for which the individual had been warned. Glover v. Scott, 210 Ga. App. 25, 435 S.E.2d 250 (1993).

- In determining whether an individual was at fault in the individual's discharge for striking another worker, the department must consider the extent to which the claimant's action was provoked by a coworker and whether or not the individual was threatened by the coworker. TNS Mills v. Russell, 213 Ga. App. 14, 443 S.E.2d 658 (1994).

- When an individual who contends the individual was required to follow improper bookkeeping procedures nonetheless continues for several months to follow those bookkeeping procedures, and quits during the middle of a shift because the individual resented a new employee whom the individual was training making more money, it cannot be held as a matter of law that the individual quit for good cause connected with the work. Young v. Scott, 212 Ga. App. 572, 442 S.E.2d 768 (1994).

- Voluntary cessation of employment due to the verbally or physically abusive conduct of an employer or supervisory personnel which is of such a gravity that would justify a reasonable person to leave the ranks of the employed and join the ranks of the unemployed constitutes the requisite good cause to prevent disqualification. Blair v. Poythress, 211 Ga. App. 674, 440 S.E.2d 261 (1994).

- Employee has not left the employee's employment "voluntarily without good cause" if the employee chooses not to work during a part or all of the period between notice of termination and the date of termination set by the employer. Elizabeth v. Caldwell, 160 Ga. App. 549, 287 S.E.2d 590 (1981) (decided under Ga. L. 1937, p. 806).

When the employee is otherwise eligible for unemployment compensation benefits, the employee's leaving work after the employee was given definite notice will not deprive the employee of those benefits during the period of involuntary unemployment. Elizabeth v. Caldwell, 160 Ga. App. 549, 287 S.E.2d 590 (1981) (decided under Ga. L. 1937, p. 806).

- Mutual consent of the parties is not always necessary to effect a resignation. A resignation may become effective without acceptance by a higher authority. Bulloch Academy v. Cornett, 184 Ga. App. 42, 360 S.E.2d 615 (1987) (decided under former § 34-8-158).

- Department of Labor's Board of Review erred in denying the claimant unemployment compensation as the claimant had good cause for quitting the claimant's position as a certified nursing assistant because the claimant was often required to single-handedly tend to patients who required two-person assistance; working in that manner aggravated a pre-existing back injury, which caused the claimant to limp, and put both the claimant's own safety and that of the patients at risk; and the claimant's health problem and harm were obvious, and the claimant's discussion of the claimant's concerns with the assistant director of nursing and the director of nursing were sufficient to constitute alerting the claimant's supervisor of the problem. Hudson v. Butler, 337 Ga. App. 207, 786 S.E.2d 879 (2016).

- Because the employee quit with good cause after being involved in a fatal accident and suffering post-traumatic stress disorder and gave the employer a chance to address the problem, the employee was not disqualified from receiving unemployment benefits. Trappier v. Butler, 348 Ga. App. 522, 823 S.E.2d 838 (2019).

- An administrative hearing officer's finding that the employee voluntarily resigned from employment without good cause must be reviewed by the court using an "any evidence" standard. Bulloch Academy v. Cornett, 184 Ga. App. 42, 360 S.E.2d 615 (1987) (decided under former § 34-8-158).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806, and former Code Section 34-8-158, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

- If an unemployment compensation claimant is required to serve a disqualification period, that period cannot begin until the claimant becomes eligible for unemployment benefits under the state law; the claimant cannot count as part of the claimant's disqualification any period subsequent to the time the claimant became unemployed and prior to the time the claimant became eligible for benefits under the state law. 1976 Op. Att'y Gen. No. 76-27 (decided under Ga. L. 1937, p. 806).

An unemployment compensation claimant who left the claimant's most recent employment under disqualifying circumstances cannot begin the claimant's disqualification period until after the claimant has filed a valid unemployment compensation claim under state law; the claimant cannot count as part of the claimant's disqualification period the time between the day the claimant became unemployed and the day the claimant filed a valid state claim, regardless of whether the claimant has received public funds from any other source during this interim time or served a disqualification period under any other program. 1976 Op. Att'y Gen. No. 76-27 (decided under Ga. L. 1937, p. 806).

- Whether the refusal to submit to a polygraph examination disqualifies a former employee from the receipt of unemployment benefits must be decided on a case-by-case basis in light of the internal policies and practices of the employer. 1985 Op. Att'y Gen. No. 85-55 (decided under former § 34-8-158).

The results of a properly conducted polygraph examination given with respect to employment are admissible in an administrative proceeding dealing solely with employment upon stipulation of the parties. 1985 Op. Att'y Gen. No. 85-55 (decided under former § 34-8-158).

Claimant with direct interest in labor dispute is disqualified from receiving unemployment benefits until that claimant completely severs the relationship with the employer involved in the dispute and reenters the labor market through an active, good faith attempt to obtain full-time, continuous employment. 1991 Op. Att'y Gen. No. 91-19.

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Unemployment Compensation, § 48 et seq.

- 81 C.J.S., Social Security and Public Welfare, §§ 294 et seq., 390 et seq.

- Amount which employee, or one wrongfully denied employment, has earned, or might have earned, in other employment, or received from other sources as affecting computation of amount to compensate him for loss of time due to unfair labor practice, 144 A.L.R. 399.

What amounts to "misconduct" which precludes benefits under Unemployment Compensation Act to discharged employees, 146 A.L.R. 243.

One who uses his own truck as an independent contractor or an employee of concern for which he transports goods, within social security or Unemployment Compensation Act, 151 A.L.R. 1331.

Power of administrative officer to limit period or disqualification for unemployment benefits, 155 A.L.R. 411.

Circumstances of leaving employment, availability for work, or nature of excuse for refusing re-employment, as affecting right to social security or unemployment compensation, 158 A.L.R. 396; 165 A.L.R. 1382.

Unemployment compensation benefits and incidence of tax upon employer where, during the base year, employee worked in different states for same employer, 9 A.L.R.2d 646.

Leaving employment, or unavailability for particular job or duties, because of sickness or disability, as affecting right to unemployment compensation, 14 A.L.R.2d 1308.

Private employee's loss of employment because of refusal to submit to drug test as affecting right to unemployment compensation, 86 A.L.R.4th 309.

Unemployment Compensation: Eligibility as affected by claimant's refusal to work at particular times or on particular shifts for domestic or family reasons, 2 A.L.R.5th 475.

Unemployment compensation claimant's eligibility as affected by loss of, or failure to obtain, license, certificate, or similar qualification for continued employment, 15 A.L.R.5th 653.

Eligibility for unemployment compensation as affected by claimant's voluntary separation or refusal to work alleging that the work is illegal or immoral, 41 A.L.R.5th 123.

Leaving employment or unavailability for particular job or duties because of sickness or disability, as affecting right to unemployment compensation, 68 A.L.R.5th 13.

Eligibility for unemployment compensation of employee who retires voluntarily, 75 A.L.R.5th 339.

Work-related inefficiency, incompetence, or negligence as "misconduct" barring unemployment compensation, 95 A.L.R.5th 329.

Use of employer's e-mail or internet system as misconduct precluding unemployment compensation, 106 A.L.R.5th 297.

Unemployment compensation: Harassment or other mistreatment by coworker as "good cause" justifying abandonment of employment, 121 A.L.R.5th 467.

Conduct or activities of employees during off-duty hours as misconduct barring unemployment compensation benefits, 18 A.L.R.6th 195.

Eligibility for unemployment compensation as affected by voluntary resignation because of change of location of residence under statute conditioning benefits upon leaving for "good cause," "just cause," or cause of "necessitous and compelling nature,", 25 A.L.R.6th 101.

Eligibility for compensation as affected by voluntary resignation because of change of location of residence under statute conditioning benefits upon leaving for "good cause attributable to the employer,", 26 A.L.R.6th 111.

Eligibility for unemployment compensation as affected by voluntary resignation because of change of location of residence under statute denying benefits to certain claimants based on particular disqualifying motive for move or unavailability for, 27 A.L.R.6th 123.

Unemployment compensation as affected by employer's relocation or transfer of employee from place of employment, 80 A.L.R.6th 635.