An interesting scenario regarding voluntary termination

[soundjester]

What is the name of your state (Texas)?

I have been working remotely from Texas for a company in Virginia for the last 7 months. Prior to that, I was working for this same company in Virginia for about the last 7 years, and relocated to Texas for my wife's job. My supervisor made accommodations for me to work remotely, and as a salaried IT worker doing database administration, remote work is not uncommon.

Recently, my supervisor and Human Resources have said that the position is domiciled in Virginia and that my position is not approved for remote work. Therefore, if I cannot relocate back to Virginia, which I cannot, they will need to let me go. In this scenario, would I be considered to have voluntarily terminated my employment since I moved out of state and cannot move back?

My supervisor is asserting that my out-of-state move constitutes a resignation since the position is not approved for remote work; however, I don't feel that is valid, considering that I have been successfully performing my job functions remotely for the last 7 months.

 

[sandyclaus]

What is the name of your state (Texas)?

I have been working remotely from Texas for a company in Virginia for the last 7 months. Prior to that, I was working for this same company in Virginia for about the last 7 years, and relocated to Texas for my wife's job. My supervisor made accommodations for me to work remotely, and as a salaried IT worker doing database administration, remote work is not uncommon.

Recently, my supervisor and Human Resources have said that the position is domiciled in Virginia and that my position is not approved for remote work. Therefore, if I cannot relocate back to Virginia, which I cannot, they will need to let me go. In this scenario, would I be considered to have voluntarily terminated my employment since I moved out of state and cannot move back?

My supervisor is asserting that my out-of-state move constitutes a resignation since the position is not approved for remote work; however, I don't feel that is valid, considering that I have been successfully performing my job functions remotely for the last 7 months.

Do you have a specific employment contract that allows for you to continue performing this job remotely while living out of the state? IF not, then your employer can change the terms of your employment at any time. If they have decided that you must work at their facility as a condition of retaining your position, then the choice is clear - either move to Virginia or lose your job.

If there's a different take on this, perhaps cbg or another of our senior members can chime in and share.

 

[LeeHarveyBlotto]

Is the concern whether is it a "voluntary" termination about unemployment benefits or something else?

 

[swalsh411]

Yes that is what I think the OP is asking. Clearly this is not an illegal term.

My opinion would be that this is an involuntary term because the employer allowed the employee to work remotely for the better part of the year and then took that away, and the employee has a good cause reason why he is not able to move back to VA. It's not as if the employee said "I'm going to work remotely. Accommodate me or I quit."

 

[commentator]

For unemployment purposes, I think I'd go ahead and file without calling it officially anything. It doesn't matter what you, or the employer calls it when you file and they do the inquiry with the employer. Employers are notorious for saying that every employee who leaves has voluntarily separated. The unemployment system expects that.

The unemployment system will look at the exact circumstances of the termination/resignation/separation, whatever you decide to call it. As it was okay for you to work remotely at first, and you did so and worked for them for seven months in these circumstances, it will probably be an approved claim.

the absence of a strict employment contract, which almost no one ever has, the employer can legally change the circumstances of the job at any time, and take it away if you can't meet the new circumstances. However, for unemployment insurance purposes, it will appear that you do have a good job related reason to have refused to continue the job. Moving across the country is pretty much a deal killer for most people, and will very likely be determined that you are out of work through no fault of your own. Especially since they did allow you to work remotely for a few months, and then took the job away from you.

You'll file an unemployment claim in the state where you are now living, telling them about your employment in the state where your employer was located, and they'll do an interstate unemployment claim, enabling you to do your job registrations and work search activities in the state where you live, and draw benefits from the state where unemployment taxes were paid in for you.

 

[cbg]

I would not consider it a voluntary term but I can see why someone else would.

In any case, unemployment benefits will be approved or denied based on whether the unemployment office considers it a voluntary term, not on whether the employer does. So frankly, I see it as a non-issue.

 

[soundjester]

Thank you to all!

The question was aimed at unemployment, not wrongful term, and I probably should have put that in the original post. I am not upset at the company, as, in general, it is a good place to work and I like my supervisor and co-workers. I had simply heard some statements recently that made it seem like they were putting the termination decision on me, saying that I could continue with my employment by simply showing up in Virginia.

This helps put my mind more at ease.

 

[swalsh411]

Don't worry about what they call it or what they think. They aren't the ones making the decision. File as soon as you are terminated, and even if your claim gets held up for investigation, continue to make all your certifications while looking for a new job.

 

[soundjester]

Yes, thanks, I will do. I have read several threads on this and other sites where people did not continue to make their certifications while they waited for arbitration or approval, and how that caused them issues, so I will immediately file upon termination and will continue to do the certifications.

 

[tranquility]

I agree with commentator but wonder if the company was paying taxes appropriately to the state where the work was being performed. While I'm not a fan of regulation, the U.S. is woefully regulated regarding tele or distance workers and the legal schema is uncertain. It amazes me that I can use my cell phone in a way no one could tell I was not sitting at my desk at the office. Yet, that is not the average way work is done. The resources saved would revolutionize business. There is certainly great advantage from the synergy of many different people working in the same place. However, it seems more of a trust and power issue for supervisors. Well, along with workplace rules designed for factories.

 

[davew128]

I agree with commentator but wonder if the company was paying taxes appropriately to the state where the work was being performed.

I can almost guarantee they were not.

 

[commentator]

I collected said taxes for many years. In unemployment, it is not necessary to set up a tax account on the employee in Idaho just because his worksite is in Idaho. Think of construction workers, who've been traveling all around the world ever since unemployment insurance came into being, being paid (and their employer taxes collected) from the centralized location where the company sets up its payroll. Whatever state the wages were paid in to, that is the state the unemployment will be coming from, their max benefits, their specific rules.

But then of course the claimant will not be able to do work searches in that state, so they'll need to file through the other state, where they actually reside now. They'll be drawing a virginia claim while living in Texas, and that is a wonderful thing for the claimant, because Virginia is much more generous in their unemployment payments than Texas. But the appropriate taxes were paid, I am quite sure, at the company's payroll location, which is Virginia.

 

[tranquility]

I collected said taxes for many years. In unemployment, it is not necessary to set up a tax account on the employee in Idaho just because his worksite is in Idaho. Think of construction workers, who've been traveling all around the world ever since unemployment insurance came into being, being paid (and their employer taxes collected) from the centralized location where the company sets up its payroll. Whatever state the wages were paid in to, that is the state the unemployment will be coming from, their max benefits, their specific rules.

But then of course the claimant will not be able to do work searches in that state, so they'll need to file through the other state, where they actually reside now. They'll be drawing a virginia claim while living in Texas, and that is a wonderful thing for the claimant, because Virginia is much more generous in their unemployment payments than Texas. But the appropriate taxes were paid, I am quite sure, at the company's payroll location, which is Virginia.

Notwithstanding the fact most unemployment taxes are not collected from the employee but paid by the employer, I disagree with the thought it is not necessary to setting up an unemployment account in the state the employee does the work. For example, if New York, the rules can be found in an article here:
http://www.davidrichlaw.com/new-york-business-litigation-and-employment-attorneys-blog/2012/05/must-my-business-in-new-york-make-unemployment-insurance-contributions-to-new-york-with-respect-to-out-of-state-employees/

That test is the same in California.
1. Localization;
2. Location of base of operations;
3. Source of direction or control; and
4. Employee�s residence.
Each test is done, in order, and once a test is met, you no longer look further down the line.

When I look to Texas Labor code Sec. 201.043. LOCATION OF SERVICE, it seems there is a similar scheme with the addition of a step before #4 having to do with services that "includes service performed after 1971 outside the United States by a citizen of the United States as an employee of an American employer". But, since the first test is met:

(1) the service is localized in this state;

I'd say the company should have been paying Texas for the labor being completely done there.

Info edit:While not state specific, articles on some of the problems of telecommuting and taxes are at:
http://www.thefreelibrary.com/State+tax+implications+of+employing+telecommuters.-a0133082207
http://www.forbes.com/sites/peterjreilly/2012/03/29/corporate-tax-departments-will-start-hating-telecommuters/
http://documents.jdsupra.com/d769ce9d-fab2-4f56-96bd-8dc0b9c2cafc.pdf
http://www.facpa.com/documents/WEB_09091.pdf
http://files.ali-cle.org/thumbs/datastorage/lacidoirep/articles/PTL_Telecommuting_PTXL_0105_thumb.pdf
http://www.journalofaccountancy.com/Issues/2009/Jun/20091371
http://www.bna.com/case-study-state-n17179870351/

 

[commentator]

I don't want to get into an argument. But the localization of the work would be the deal killer to me. He was not doing work locally that served clients in the local area, he was doing whatever he was doing that served the needs and met the supervison requirement and all the other things for the company back in Virginia. He may have been doing it in Texas, but setting up an employer account in Texas for one employee of a company in Virginia who was not doing business in Texas but working remotely in Texas would have been sort of unusual.

 

[davew128]

commentator, respectfully, you're wrong. The employee working remotely in Texas for the employer's benefit DOES mean the employer is doing business in Texas, at least for tax purposes.