2021 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

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.