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Can a nurse always apply for unemployment insurance after leaving a job?

Leaving a job can be a complex matter and does not always fit into the routine rules of unemployment compensation.

A nurse wrote to me describing a conviction for DUI and the state board of nursing’s requirement that the nurse meet certain employment conditions, including on-site monitoring by another designated nurse and no floating assignments.

The hospital refused the board’s requirements. The nurse refused to voluntarily resign in the face of the employer’s refusal and was terminated.

The nurse asked whether an application for unemployment compensation would be possible and if the employee would have to fight for the benefits.

Unemployment insurance is a joint federal-state benefit for former employees who are temporarily out of work, through no fault of their own. Unemployment insurance exists in all states but its components vary widely.

Even so, common themes exist in most unemployment compensation statutes. For example, what type of employees covered include: part-time and full-time; private, federal, state and local governments; and executives, officers and rank and file.

A second common topic is that the benefit does not last forever. Most states provide an average of a 26-week benefit, including Illinois, Oklahoma and Arizona. Other states, such as Maine and Montana, allow more while Arkansas and Florida provide the benefit for fewer than 26 weeks.

The amount provided under unemployment compensation includes a certain percentage of what the employee earned while employed. According to unemployment attorney Lisa Guerin, JD, a common formula is to pay half of what the employee earned while employed up to a cap that is linked to the average earnings in a specific state.

Another important component of unemployment laws is that the former employee must apply for this benefit. The employer does not do so.

Though it may seem that every former employee is able to apply for unemployment benefits, this is not true. One must be eligible for those benefits. First, the former employee must meet a state’s requirements for time worked or wages earned. This varies from state to state.

If eligible, the former employee must actively be seeking work during the time on unemployment payments. The state agency that administers the benefits has specific requirements that must be met, including regular, detailed reporting of jobs sought, dates and the outcome of the search.

Ineligibility for unemployment compensation occurs under varying circumstances in each state as well. One common category is if the employee leaves his job on his or her own through no fault of the employer. A clear example would be a voluntary resignation.

A second common type of ineligibility is if the employee was involved in misconduct and was terminated. Misconduct can include not following an employer’s policy or protocol, stealing from the employer and insubordination.

Former employees who are on strike and those who refuse to accept suitable work without good cause also are generally not able to apply for unemployment compensation.

Your turn

Will this nurse need to be prepared to fight for any unemployment benefits based on the above highlights of the law?

Note: Nancy Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice.

By | 2015-11-03T21:34:53-05:00 November 4th, 2015|Categories: Nursing careers and jobs|4 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

4 Comments

  1. Avatar
    Carol November 16, 2015 at 1:43 pm - Reply

    I think she can try for it but I think she will be denied. Employment is at-will in my state, and you can be fired for anything, other that those things that put you in a protected class such as race, disability, age, and pregnancy.

    Is alcohol abuse a disability? If she is under treatment for addiction it might be. If it is just substance abuse and breaking the law by DUI, I would say no. Sadly, I think her employer has the upper hand here and since she broke the law they can do what they want.

    This reflects the sad truth that most employers see us as FTEs, bodies to fill a shift, rather than employees who are a valuable asset and have real lives outside of work with real problems that sometimes cause us to need a helping hand. The investment of 40 hours a week of our time and our efforts mean nothing when we age or become inconvenient. Loyalty should be a mutual thing, but it is not. This is why so many nurses job-hop.

    • Avatar
      Amara Taylor November 16, 2015 at 11:57 pm - Reply

      I recently left my position at a hospital where I was forced to resign after I went to HR after reporting harassment and bullying issues. I left without having another job lined up and was terrified and didn’t initially apply for unemployment benefits, because I assumed since I was the one who left I was not qualified. However, I applied and I was approved after being interviewed numerous times and because of my previous employers lack to follow up with my states department. So my advice is to give it a shot because you never know the outcome.

  2. Avatar
    Jane November 19, 2015 at 7:34 pm - Reply

    She should apply but she should be prepared for a fight and an administrative appeal. The facts indicate that while she was convicted of DUI the conviction was not the basis for the termination, the license restrictions were the cause. While license restrictions may be onerous for an employer, unless the employer can demonstrate that the license restrictions are considered by the employer to be “misconduct” AND the UI administrative law judge agrees that such a determination is reasonable she could ultimately receive benefits. One factor would be whether the employer fires ALL disciplined RNs or if they only sometimes fire. If only sometimes, or never before, the applicant would have a very good chance at receiving benefits. There are myriad other factors which would come into play and state law varies greatly from state to state so it is impossible to say for certain. In California just with the information given I would think her chances of obtaining benefits would be greater than 75% while in AZ or TX he chances are well below 50%. However, and it’s a big however, one of the purposes of unemployment insurance benefits is to keep former employees from becoming destitute and a drain on other state services. Some states take that strongly into consideration as the unemployed person denied unemployment may then become eligible for more costly state support benefits (food stamps, welfare, Medicade etc) but some portion of UI is paid for by the employer making it a taxpayer v employer decision. Se states make this clear as a factor of consideration and some don’t but still consider it.

  3. Avatar
    Kay Gremmels November 27, 2015 at 2:21 pm - Reply

    I think the nurse should apply for unemployment . From my experience with unemployment, It really is up to the Unemployment Investigator who interviews the nurse over the phone to make that determination NOT the employer. That is what I was told by an Unemployment Investigator. I have found the Unemployment Investigators and the Unemployment office to be very helpful. The Unemplyment office has all kinds of services, including employment counselors and education sessions, to help people. I have always had a good experience with them and have came away gaining more than when I walked in the office. During the great recession period and thereafter (2008-2014) I have filled for unemployment several times for several reasons. I have never been denied. Not having a BSN at that time and my only experience during that time was as a hospital nurse, I was unable to find any hospital nursing employment. I also have 30+ years of RN experience and my age Have also been a factor in not being able to secure another hospital position- they simply don’t was us older nurses with experience. I was forced to rely on temp positions in out of the box nursing roles- government contractor civilian nurse in a military clinic, the state department of health as an out break intake nurse during H1N1, teaching nursing home nurses through out my state how to use a certain IV pump and “a records management position” in a corporate occupational health office, Some of my terminations and unemployment periods were because I had spoke up and reported, like some one else posted- bullying, unlawful and unethical clinical practice issues and managerial unethical conduct which by the way, our nursing administrators will always fire us for, It is sad to say but speaking up against this takes the law/unemployment to investigate.The nursing profession is too political to do it. I am saying to go a head and file because like some one else posted, are others being fired because of the same issue or is the employer being “selective’ who they fire. This may be discrimination or favoritism. I would also say to file a complaint with the EEOC- as the EEOC has a section on employment practices and discrimination due to criminal convictions. If I am reading news reports correctly, the employment scene- hiring, firing, related to criminal convictions are changing. I don’t know how much can be done through your state board of nursing since they are the ones who imposed the license restriction but I think if there is some kind of counselor or mentor in that program, maybe the nurse should also discuss their employment situation with that person so that the BON is aware of this labor practice. Perhaps this conversation with the BON can stimulate the BON into taking a stronger and more authoritative stand in upholding its rulings for its nurses without fear of employment or financial reprisal. it is my understanding that the BON is trying to encourage self reporting and help for the impaired nurse and it seems that employers are destroying and undermining the BON’s efforts by taking such adverse employment decision actions..There seems to be a general climate of disconnect between what our BON’s are issuing as rules and regulations and guidelines of our nursing practice and what these employers are asking of us in terms of our scope of practice and placing licenses in jeopardy and, in general, just operating health care facilities and the nursing workforce against the nursing practice act.. When applying for unemployment, the person will not receive benefits until that person speaks with the Unemployment Investigator – the time and date for the phone interview will come in the mail as a notice from the Unemployment. If the investigator grants the unemployment benefit, the person is paid retrospectively. The administrative judge or arbitrator comes in when the employer contests the unemployment compensation approval. This is when there is a 3 way phone hearing between the unemployed person, the arbitrator and the employer or a court date hearing of all parties- a failure of either party to show up, the other side automatically wins. The nurse has nothing to loose by filing an unemployment claim. This is how naive I used to be- in 2008 I was fired because I spoke up against a group of nurses aides who were refusing to help a male minority RN with his patients, I went to my unit manager, I went to my VP of nursing and nothing was done, the bullying continued and got worse- they turned on me. I was at the time under the impression from miss information among my nurse friends, that nurses were not entitled to unemployment benefits so I used my entire saving to support myself, and my 2 daughters, I was a newly divorced single parent and had to pay my bills and keep the roof over our heads. It was 8 months before got another job and only perdeim at that. I did not have any references either from my former job because I was terminated. The employment market for nurses is still extremely difficult, with a degree or without a degree, age experienced or inexperienced, criminal record or no criminal record. Employers make keeping your job very difficult if not impossible. If they want you gone, you are gone.

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