Warn Act: Employee Gets New Job During 60 Days Pay
Question presented:
What if while I am receiving 60 days’ pay, instead of a WARN notice, I get a new job? Is my employer required to continue paying me until the end of the 60-day period?
We invite your attention to our disclaimer.
Your former employer can consider the acceptance of a new job as a voluntary termination from your old job. Since you now have a new job, your former employer may end the payments you were receiving instead of a notice—just as the remaining days of your 60-day WARN notice would no longer be in effect if you found new employment before the date of your layoff.
Legal Reference
Eligibility, Involuntary Unemployment
Cal. Code Regs., tit. 22, § 1256-1, relates to a voluntary leaving of work within the meaning of Unemp. Ins. Code, § 1256, and contrasts it with those situations in which an individual leaves work involuntarily as the result of a discharge, a layoff, a disciplinary suspension or any other cessation of employment. (Regulation 1256-1(a)). An employee voluntarily leaves work when the employee is the moving party causing his or her unemployment. (Regulation 1256-1(b)). An employee involuntarily leaves work when the employer is the moving party in causing the unemployment of an employee at a time when the employee is able and willing to continue working. (Regulation 1256-1(c)). Whether an employee leaves voluntarily or involuntarily depends on which party initiated the termination of employment. (Regulation 1256-1(d)). Under Regulation 1256-1(f), an employee who is discharged may be deemed to have voluntarily quit. Kelley v. California Unemployment Ins. Appeals Bd., 223 Cal. App. 4th 1067
Unemployment Compensation, Burdens of Proof
The rule on constructive voluntary quit applies to an unemployment compensation claimant who set in motion the chain of events that resulted in the employer’s having no choice except to terminate the employee. Three requirements must be satisfied to invoke it: (1) the claimant voluntarily committed some act; (2) that act made it impossible for the employer to utilize his or her services; and (3) the claimant knew or reasonably should have known the act would jeopardize the job and possibly result in termination. It is the voluntary placing of oneself outside the employable sphere that determines whether the person has constructively voluntary quit. The constructive voluntary quit doctrine requires the employer to overcome a rebuttable presumption against a finding of constructive quit. This can only be done by substantial evidence that the employee took some action that actually prevented the employer from retaining the employee, or made some unequivocal demand as a condition to his continued employment that the employer had no obligation to meet and that the employee reasonably knew would result in termination. The doctrine does not apply to those situations in which the employee makes requests or inquiries about employment matters, even though the employer may consider such speech irritating or ungracious. Kelley v. California Unemployment Ins. Appeals Bd., 223 Cal. App. 4th 1067