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«Industrial Claim Appeals Office Law Library The library contains information on various topics in unemployment law, including relevant statutes and ...»

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Industrial Claim Appeals Office

Law Library

The library contains information on various topics in unemployment law, including relevant statutes and

regulations, as well as case law from the Colorado courts. This is not an exhaustive list of every

statute and court decision that involves unemployment insurance, nor is there information on

every issue that can arise in this area. Rather, this document is designed to provide a general

overview of the law concerning the most commonly occurring unemployment issues.

For each topic listed, the relevant sections of the Colorado Employment Security Act (from the Colorado Revised Statutes) and the Regulations Concerning Employment Security (from the Code of Colorado Regulations) are listed below. The complete Colorado Employment Security Act and Regulations Concerning Employment Security can be accessed by clicking the appropriate link in the Reference Library.

Please Note: If a topic listed in this library includes references to statutes outside the Colorado Employment Security Act, those statutes are available online through the following website: Complete Colorado Revised Statutes. Select Colorado Revised Statutes, and Title 8 - Labor and Industry.

You may also look up individual court cases directly in our Table of Cases, which is an alphabetical list of every case in this library.

This website was created for general information purposes only, and is not an official publication.

Although every effort has been made to ensure the accuracy of the information provided, we do not guarantee that there are no errors or omissions.

Table of Contents Click on the title below to go directly to the description Benefit Awards Award warranted when claimant is not at fault Lack of work Health Addiction Unsatisfactory working conditions Substantial changes in working conditions Unreasonable reduction in rate of pay Law library Page 2 Quitting for another job (construction workers only) Election to accept termination instead of replacing another worker Violation of a written contract Discharged without a reason given to claimant or division Physically or mentally unable to perform the work or unqualified to perform the work Refusal with good cause to work overtime Instruction to perform illegal act Involuntary retirement Unsuitable work Personal harassment by the employer Business closure because the employer is called to active military duty Domestic violence Quitting to relocate with military spouse Quitting to relocate because spouse killed in combat Quitting to relocate with spouse who is transferred in his or her job Caring forill family member Disqualification Dissatisfaction with standard working conditions Dissatisfaction with reasonable supervision

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Violation of a company rule that resulted or could have resulted in serious damage to the employer’s interests Off-the-job use of drugs or alcohol that interferes with job performance On-the-job use of drugs or alcohol Presence of alcohol or drugs in a worker’s system Incarceration after conviction

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Willful neglect or damage to the employer’s property or interests Rudeness, insolence or offensive behavior not reasonably to be countenanced

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Failure to safeguard, maintain, or account for the employer’s property Taking unauthorized vacations or failure to return from an authorized leave Refusal without good cause to work a different shift Refusal without good cause to transfer to another department Other reasons, including excessive tardiness or absenteeism or failure to meet established job performance or other defined standards

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Statute § 8-73-108(4) Cases City and County of Denver v. Industrial Commission, 756 P.2d 373 (Colo. 1988) Once the employer establishes a prima facie case for disqualification, it is the claimant’s burden to establish that his or her conduct was not volitional.

Collins v. Industrial Claim Appeals Office, 813 P.2d 804 (Colo. App. 1991) To be at fault for the separation, the claimant need only have acted volitionally, or exercised control in the circumstances that led to the separation.

Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987) Whether a claimant was discharged according to the employer's disciplinary guidelines is a separate issue from whether the claimant's conduct was disqualifying. That assessment requires consideration of the totality of the circumstances which caused the separation, including whether the claimant acted volitionally in the circumstances that caused the separation.

Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo. App. 1993) The employer's failure to follow its established disciplinary procedures prior to terminating a claimant is a factor to be considered, but is not dispositive of whether the claimant acted volitionally in the circumstances that caused the discharge.

Pabst v. Industrial Claim Appeals Office, 833 P.2d 64 (Colo. App. 1992) A warning is not a prerequisite to an individual’s ability to engage in volitional conduct. All that is necessary is the claimant knew what was expected and failed to comply.

Richards v. Winter Park Recreational Association, 919 P.2d 933 (Colo. App. 1996) The concept of "fault" does not require culpability or an intentional act, but does requires volitional conduct on the part of the claimant. The claimant acts volitionally if he or she exercises some control or choice in the circumstances leading to the separation such that the claimant can be said to be responsible for the separation.

Santa Fe Energy Co. v. Baca, 673 P.2d 374 (Colo. App. 1983) An award warranted under § 8-73-108(4), even if no specific award section is applicable, where claimant is not “at fault” in the circumstances.

Zelingers v. Industrial Commission, 679 P.2d 608 (Colo. App. 1984) Law library Page 5 A claimant who was terminated for missing work did not act volitionally to cause her separation when she was given at least tacit permission to miss work and was not told her job would be in jeopardy if she was absent.

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Statute § 8-73-108(4)(a) Cases Intermountain Jewish News, Inc. v. Industrial Commission, 39 Colo. App. 258, 564 P.2d 132 (1977) An agreement that a claimant's employment would end on a certain date did not preclude the claimant from receiving unemployment benefits, and the evidence supported an award of benefits under § 8-73-108(4)(a).

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Statute § 8-73-108(4)(b)(I) Senate Bill 13-011 is effective as of April 4, 2013.

Cases Andersen v. Industrial Commission, 167 Colo. 281, 447 P.2d 221 (1968) There is no requirement that a claimant be advised to quit by a physician in order to be entitled to unemployment benefits; rather, a medical statement is only required if the employer requires or requests one according to the terms of the statute.

Frontier Airlines v. Industrial Commission, 734 P.2d 142 (Colo. App. 1986) Claimants who were on mandatory leave from their jobs as flight attendants due to pregnancy were "separated" from employment, even if the separation was only partial, and the employer's continuation of "employee benefits" to the claimants did not preclude a determination that the claimants were separated from employment. Further, § 8-73-108(4)(b)(I) is an exception to the general rule in Sec. 8-73-108(1)(a) that claimants must be unemployed through no fault of their own, and thus the claimants did not have to show they became pregnant through no fault of their own.

Hodges v. Canon Lodge Medical Investors, Ltd., 879 P.2d 476 (Colo. App. 1994) Where the claimant has informed the employer of his or her health condition, it is not required that the claimant specifically inform the employer that the health condition is the cause of the claimant's resignation.

Law library Page 6 Nelson v. Industrial Claim Appeals Office, 826 P.2d 436 (Colo. App. 1992) The claimant and his wife both had significant medical problems, and both were covered under the wife's insurance plan. The wife's employer required her to transfer to California, and the claimant quit his job in Colorado to move with her so that they could maintain their insurance coverage. As there was no evidence the couple's medical problems were work-related or that anything in the vicinity of their jobs in Colorado contributed to their medical conditions, and there was no indication that the medical treatment in Colorado was inadequate, the court held that the claimant quit for financial rather than health reasons and denied unemployment benefits.

Public Service Company of Colorado v. Ingle, 794 P.2d 1374 (Colo. App. 1990) In order to be entitled to unemployment benefits for having to seek a new occupation because of health reasons under § 8-73-108(4)(b)(I), a claimant must be required to seek a new line of work, not simply another job. Also, if the employer fails to ask for medical documentation to substantiate the cause of the claimant's resignation, the claimant is not precluded from being awarded unemployment benefits for failing to provide that information.

Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983) Evidence of causation in a workers' compensation case was not limited to medical testimony or evidence; the claimant's testimony as to her condition was sufficient to support an award of benefits.

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Statute § 8-73-108(4)(b)(IV) Cases City and County of Denver v. Industrial Commission, 756 P.2d 373 (Colo. 1988) Alcoholism or is not inherently non-volitional, and that conduct induced by alcoholism may or may not be voluntary, depending on whether the claimant had the ability to exercise control over his or her actions. Moreover, the claimant is required to make a prima facie showing that his or her behavior directly resulted from alcoholism that was for the claimant non-volitional.

Fowler v. Carder, Inc., 849 P.2d 917 (Colo. App. 1993) A declaration by the claimant that he was addicted to alcohol was one of the requirements of § 8b)(IV), but was not enough to satisfy part (B) of the statute, the substantiation requirement. Further, as the claimant did not provide substantiation of his claim of being an alcoholic, and denied that he was being treated for his alcoholism, he did not have four weeks within which to present proof of a treatment plan under part (C).

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Statute § 8-73-108(4)(c) Cases Campbell v. Industrial Claim Appeals Office, 97 P.3d 204 (Colo. App. 2003) A claimant's failure to provide evidence of the working conditions for workers performing the same or similar work for the same or other employers does not bar an award for unsatisfactory working conditions if sufficient evidence was shown to satisfy the statute. However, if such evidence is presented, it must be considered along with the other relevant factors in the statute.

Gatewood v. Russell, 29 Colo. App. 11, 478 P.2d 679 (1970) "[T]he reason for voluntary termination of employment must be for objective rather than personal reasons." In this case, although the claimant asserted he quit because of harassment, those circumstances were found to be a personality conflict with his supervisor. Therefore, because the claimant quit for subjective personal reasons, the claimant was disqualified from the receipt of unemployment benefits.

Hellen v. Industrial Commission, 738 P.2d 64 (Colo. App. 1987) There is no requirement that the claimant must show he or she was singled out for unsatisfactory treatment by a supervisor. Rather, "the only relevant consideration is whether the nature of such supervision was 'reasonably to be expected,'" and thus the claimant is entitled to an award even if the unreasonable supervision was applied to all employees.

Musgrave v. Eben Ezer Lutheran Institute, 731 P.2d 142 (Colo. App. 1986) A claimant is not required to notify the employer of his or her dissatisfaction with the working conditions in order to be entitled to an award of unemployment benefits.

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Statute § 8-73-108(4)(d) Cases Arias v. Industrial Claim Appeals Office, 850 P.2d 161 (Colo. App. 1993) If the claimant's separation from employment was caused by a substantial change in working conditions, or unsatisfactory working conditions, the claimant is entitled to an award only if the conditions were less favorable to the claimant than conditions prevailing among similar workers in that locality, either by the same or similar employers.

Chris the Crazy Trader, Inc. v. Industrial Claim Appeals Office, 81 P.3d 1148 (Colo. App. 2003) Law library Page 8 The Division and the hearing officer do not have a duty to seek or obtain evidence concerning working conditions for employees doing similar work for other employers in the locality.

Rather, it is the responsibility of the parties to present their own evidence.

Gray Moving and Storage, Inc. v. Industrial Commission, 38 Colo. App. 419, 560 P.2d 482 (Colo. App.

1976) "Overt acts or conduct by the employer directed at one employee... is sufficient to support a full award. It is not required that working conditions become impossible, only that there be a substantial change." Here, a supervisor's derogatory treatment and ostracism of the claimant constituted a substantial and less favorable change in working conditions for the claimant.

Larsen-Oldaker v. Industrial Commission, 735 P.2d 209 (Colo. App. 1987) When the claimant quits as the result of a substantial change in working conditions, such as after being demoted, if the reason for the change is because of disqualifying conduct on the part of the claimant, then the claimant shall be disqualified from receiving unemployment benefits.

Martinez v. Industrial Commission, 657 P.2d 457 (Colo. App. 1982) A disqualification for quitting due to dissatisfaction with standard working conditions is improper where a claimant quit because of a job change he interpreted as a demotion. Further, the claimant's loss of supervisory or managerial duties was a substantial change in working conditions.

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