Unemployment Insurance Rules Often Leave Workers With Volatile Schedules Behind
By Rick McHugh and Liz Ben-Ishai
Growing numbers of Americans, especially those in low-paying jobs, have work schedules that fluctuate wildly from week to week. These volatile schedules, which often come with little advance notice, vary by both total hours and shift times. Given the chaos that such schedules create, it’s no surprise that workers are often forced to leave their jobs. In a new fact sheet, we examine how employers’ volatile scheduling practices intersect with ten states’ unemployment insurance (UI) rules. Drawing on legal research, as well as interviews with advocates and UI agency officials in those states, we find that in many cases established UI rules and agency practices don’t reflect today’s labor market. As a result, workers facing volatile schedules often come up short under the current system, leaving them without a safety net.
When they consider UI claims involving workers who lose their jobs as a result of volatile schedules, state agencies must often rely on relatively old rules, which they must apply to new “factual settings”—that is, the new world of erratic schedules. Under those old rules, a substantial reduction in wages or hours (usually 25 percent) justifies an employee leaving work; in such situations, workers can quit their jobs without being disqualified from receiving UI. But when workers in jobs with volatile schedules face similar situations, we found a consistent pattern of state agencies using discretionary rationales to avoid applying these same UI rules, ultimately disqualifying workers from UI benefits.
State agencies commonly give two reasons for denying claims filed by workers subjected to volatile schedules when they leave their jobs after substantial cuts in pay and hours. First, they say that the employees understood at the time of hiring that volatile schedules were a condition of their employment. Second, they argue that employees must ask employers to adjust their schedules prior to quitting, even when their schedules were set according to established employer practices and making such a request would likely be futile. In other cases, states offer what appear to be conflicting reasons for denying claims: some workers quit too soon after their schedules are changed—not giving their new schedule enough of a chance—and others stay too long when faced with volatile scheduling practices—apparently demonstrating the acceptability of the situation by not quitting sooner. The common theme for all four of these rationales is that UI claims are denied.
Perhaps most troubling is that there is little or no chance for workers to know in advance what rules will be applied to their UI claims. These discretionary rules of thumb are not found in rules published by agencies in most states. Instead, these informal rules are commonly understood by agency adjudicators or appear in software used to guide agency staff when deciding claims. Indeed, in some cases these agency rules of thumb are not found in the text of state UI laws regarding leaving work with good cause.
Our new fact sheet helps advocates, policymakers, and others to understand the unique challenges created when a safety net system with outdated rules—the UI system—is confronted with new and growing trends in the labor market—in this case, volatile job scheduling. In the fact sheet, we summarize the findings of our longer study, Out of Sync: How UI Rules Fail Workers with Volatile Schedules. In addition, to support the growing movement to eliminate these unfair scheduling practices, we propose formal changes in UI rules to override state agency discretion and ensure that more workers experiencing volatile scheduling can rely upon UI benefits when they are forced to leave these jobs.