POSTED JUNE 12, 2012
This article appeared in The Boston Globe. Elaine Varelas is Chairman of the Board for Career Partners International and Managing Partner of Keystone Partners.
Q. I took a new job, but once I began, I realized it was clerical and not what I signed on for. After eight months, I found a contract opportunity. I hoped it would lead to a permanent situation. The contract ended after nine months, leaving me unemployed. Since I was a contractor, I was not eligible for unemployment benefits from this company. They went back to my prior company where I was a regular employee and held them responsible.
The company appealed the claim saying I left voluntarily. Any idea how to approach it?
A. An important point employees must understand is that the Division of Unemployment Assistance makes the determination of eligibility for benefits, not employers. I consulted Watertown lawyer Christina L. Montgomery, who specializes in unemployment appeals. Montgomery said, “Just because the company calls a worker an independent contractor does not make it so.”
Unemployment appeal hearings are fairly informal one hour proceedings. To classify a worker as a contractor, Montgomery says, the employer must show: (1) the worker has been and continues to be free from control and direction in performance of the service; (2) the work is performed either outside the usual course of business, or outside all of the places of business of the enterprise; and (3) the worker is customarily engaged in an independently established business of the same nature as the service performed.
As to whether your departure from the first company disqualifies you from unemployment benefits, Montgomery says that workers who leave jobs are ineligible unless they can show that they had good cause for leaving, such as harassment, or an urgent and compelling personal reason that forced them to leave. In limited circumstances an employee may be eligible for unemployment if they leave a job that is “unsuitable.”
The examiner will question each party. Focus on the question, and answer accurately. The opposing parties also have the right to cross-examine each other. A decision is mailed to the parties.