The Texas Workforce Commission Appeals Policy and Precedent Manual has been adopted for use by Agency staff as a reference to precedent-establishing decisions of the Commission and the courts. The precedents it contains represent the interpretations of the Commission that, until specifically revised by the Commission or the courts, should be applied by Agency staff in similar cases. The Commission is confident that careful and exhaustive use of the manual will result in better and more uniform decisions at all levels of the Texas Workforce Commission administrative claim and appeal process.
Access the Appeals Policy & Precedent Manual.
It should be noted that many of the precedent cases were decided over the dissent of a Commissioner, and therefore not every precedent represents the unanimous view of the Commission. By voting for the adoption of this Precedent Manual, no Commissioner waives a previously expressed opinion or objection, as reflected by the decision in any given case.
The manual also lists many published decisions from state and federal courts that govern the administration of the unemployment compensation appeals process.
Claimants and employers at any stage of the unemployment process may benefit from researching the Appeals Policy and Precedent Manual.
A case adopted as a precedent in the manual may be cited to decision-makers, Appeal Tribunal Hearing Officers, and the Commission as a governing precedent in your case.
How to Search the Precedent Manual
Access to the Appeals Policy & Precedent Manual is available by clicking the link in the next section. The Precedent Manual is a searchable and accessible PDF document. Click the links at the beginning of the document to go to specific chapters. The entire document may be searched using the search feature available within your PDF reader application.
Updates to the Manual
Updates to the Appeals Policy & Precedent Manual include both additions and deletions made to the manual since 1999. The published precedents provide insight into the Commission’s interpretation of various provisions of the Texas Unemployment Compensation Act. See below for more information.
Appeals Policy & Precedent Manual: Chapter Overview and Updates
|Able and Available||Details precedents on eligibility for unemployment benefits based on ability and availability for work.|
|Chargeback||Details precedents on chargebacks to employers' unemployment tax accounts with TWC.|
|Labor Dispute||Details claims eligibility for unemployment compensation involving an organized labor dispute.|
|Miscellaneous||Contains miscellaneous commission precedents which do not generally fall under any of the other chapter headings.|
|Misconduct||Details precedents on claimants' eligibility for unemployment benefits in cases involving an allegation of employee misconduct.|
|Procedure||Details precedents involving procedural issues related to the administration of unemployment benefits and claim determinations.|
|Suitable Work||Details precedents on claimants' eligibility for unemployment benefits following a work refusal or failure to seek work.|
|Total and Partial Unemployment||Details precedents in which eligibility for unemployment benefits is dependent on whether the employee is deemed totally or partially unemployed.|
|Voluntary Leaving||Details precedents on eligibility for unemployment benefits when there is an allegation that an employee voluntarily left available work.|
|Appendix||The appendix lists court cases interpreting various sections of the Texas Unemployment Compensation Act (TUCA), listed in alphabetical order as well as according to sections of the Act.|
These updates to the Appeals Policy and Precedent Manual include both additions and deletions made to the manual since 2010. The published precedents provide insight into the Commission's interpretation of various provisions of the Texas Unemployment Compensation Act.
Appeal No. 3443032 has been added to the Appeals Policy and Precedent Manual. It is located in PR 275.00, PR 405.15, and PR 430.30, effective October 12, 2023.
Appeal No. 3443032. Determinations made under Section 201.091(e) of the Act fit into the “wage credits/validity of claim” category which, pursuant to Rule 32(i)(1), 40 TAC §815.32(i)(1), present a one-time exception to the timeliness rules. A late appeal to the Appeal Tribunal on such issue, if made within the same benefit year as the determination on appeal, will be deemed timely. However, once an Appeal Tribunal decision on the issue has been mailed, the appeal time limits under Chapter 212 of the Act will apply.
Appeal No. 2133419 has been added to the Appeals Policy and Precedent Manual. It is located at MS 510.00, MC 5.00, VL 135.20, and VL 510.40, effective August 22, 2017.
Appeal No. 2133419. In the oil and gas industry, it is customary for employees working on vessels at sea to routinely alternate pre-determined periods of work on a vessel with pre-determined rest periods (home rotations). In this case, the claimant knew since beginning the job that the work schedule involved working 28 days on board the vessel followed by 28 days of home rotation, after which he would report back to work on the vessel. During home rotations, the claimant was required to take professional training, at the employer’s expense, and respond to the employer’s communications. The employer remained obligated to continue the bene-fits of employment. The claimant was paid on a bi-weekly basis for each day spent working on the vessel, but was not paid for the days spent on home rotation. After completing one such 28-days of work on the vessel, the claimant began a typical 28-day home rotation. During the period of home rotation, the claimant filed for unemployment benefits, knowing that he was scheduled to return to work on the vessel. HELD: Separation is an issue that requires an examination of all the facts and circumstances. The employment relationship in this case was not severed when the home rotation began, even though the claimant stopped performing services and earning wages. Employment relationships in the off-shore oil and gas industry that involve regular, rotating periods of extended off-shore work followed by extended periods of cessation in work and pay connected to a mutually understood return to work date continue until one party notifies the other that the employment relationship has been severed. In this case, the claimant notified the employer that the employment relationship had been severed, for purposes of unemployment benefits, when the claimant filed a claim for unemployment benefits. The claimant in such a situation voluntarily quits the work without good cause connected with the work. Disqualification under Section 207.045 of the Act.
Appeal No. 2091905 has been added to the Appeals Policy and Precedent Manual. It is located at PR 430.30, effective February 1, 2017.
Appeal No. 2091905-2. When the claimant filed the initial claim, he provided an incorrect mailing address to the Commission. Consequently, the claimant did not receive the initial determination that disqualified him for benefits. He filed an appeal more than 14 days after the determination was mailed. The claimant’s election to receive electronic correspondence from the Commission became active within the appeal deadline. HELD: A party’s election to receive electronic correspondence is equivalent to a change in his mailing address for appeal purposes. The activation date of such election during the appeal period will be deemed to be a timely appeal for any pending determination or decision that is adverse to the party. Any such “appeal” must be filed within the applicable statutory appeal time period.
Case No. 1679010, has been added to the Appeals Policy and Precedent Manual. It is located at MS 30.00, effective August 16, 2013.
Case No. 1679010. After participating in an initial Appeal Tribunal hearing, the employer failed to participate in a continuance hearing that was verbally scheduled at the end of the initial setting. Written notice of the hearing was not sent to the parties. The employer missed the hearing and then filed a Rule 16 petition to reopen the case. HELD: As the party did not receive written notice stating the time and date for the continuance of the AT hearing, the party established good cause for failure to participate in the continuance hearing.
Appeal No. 954-CA-70 has been removed from Section VL 155.05 in the Appeals Policy and Precedent Manual, effective February 25, 2010.
These updates to the Appeals Policy and Precedent Manual include both additions and deletions made to the manual since 1999. The published precedents provide insight into the Commission's interpretation of various provisions of the Texas Unemployment Compensation Act.
Case No. 1129075, has been added to the Appeals Policy and Precedent Manual. It is located at AA 150.15 (first case), effective 8/26/09.
Case No. 1129075. The claimant had registered for work at a local Commission office on September 18, 2008. The claimant, however, relocated to Germany when her husband, an active military member, was transferred to Ramstein AFB in Germany on September 22, 2008. The claimant continuously made her required work searches after moving to Germany. The claimant had no legal restrictions on her work in Germany. The claimant searched for work on Ramstein AFB, with a population of approximately 50,000 Americans. The claimant also searched for work at another nearby military base with a total population of approximately 50,000 individuals, and she looked for work in the local area, which included Kaiserslautern, with a population of 99,000. The claimant found work at Ramstein AFB approximately 5 months later. HELD: The claimant is available for work under Section 207.021(a)(4) of the Act. Although the claimant was residing outside the United States, the Commission concludes that it is important to consider the totality of the circumstances to determine if there is sufficient evidence of legitimate work opportunities in the area. The claimant continued to make her work searches after her relocation with her husband to a large military base. The claimant presented sufficient evidence of legitimate work opportunities in the area. The claimant had a reasonable expectation of finding work in her local area.
Case No. 1051204, has been added to the Appeals Policy and Precedent Manual. It is located at MC 485.46 (first case), MC 190.15 (third case), and PR 190.00 (first case), effective 04/23/09.
Case No. 105124. As a driver, the claimant was subject to U.S. Department of Transportation (US DOT) regulations, including drug testing regulations. The employer discharged the claimant for violating the employer's policy and US DOT regulations, both of which prohibited a positive drug test. The claimant consented to the drug test, but denied drug use. The employer presented documentation to establish that the drug test was performed in accordance with regulations prescribed by US DOT, including Medical Review Officer (MRO) certification. HELD: The submission of documentation that contains certification by a MRO of a positive result from drug testing conducted in compliance with US DOT agency regulations, currently under 49 CFR Part 40 and Part 382, is presumed to satisfy requirements number 3, 4, and 5 of Appeal No. 97-003744-10-040997 (MC 485.46) that the employer must present documentation to establish that the chain of custody of the claimant's sample was maintained, documentation from a drug testing laboratory to establish that an initial test was confirmed by the Gas Chromatography/Mass Spectrometry method, and documentation of the test expressed in terms of a positive result above a stated test threshold, as these elements must occur before a MRO can certify that the test results are in compliance with the regulations. Requirements number 1 and 2 under Appeal No. 97-003744-10-040997 (MC 485.46) remain applicable; thus, the employer must also present a policy prohibiting a positive drug test result, receipt of which has been acknowledged by the claimant, and evidence to establish that the claimant has consented to drug testing under the policy.
Case No. 806011-3, has been added to the Appeals Policy and Precedent Manual. It is located at VL 500.35 (first case), effective 07/10/06.
Case No. 806011-3. A claimant who quits work, rather than accept a reduction in pay caused by the claimant's work-connected misconduct, which the employer clearly establishes, does not have good cause connected with the work for leaving unless the claimant can establish the pay cut would be in excess of twenty-five percent.
Case No. 793210-2, has been added to the Appeals Policy and Precedent Manual. It is located at MS 375.30 (first case), effective 01/30/06.
Case No. 793210-2. If a claimant is receiving deductible remuneration under Section 207.050 of the Act when the Initial Claim is filed, the disqualification will be effective with the Initial Claim date. Otherwise, the disqualification will begin on the date on which the first payment was received, even though the first payment includes a retroactive lump sum covering prior months during which unemployment benefits were paid.
Case No. 764254-2, has been added to the Appeals Policy and Precedent Manual. It is located at MC 135.05 (first case) and VL 135.05 (first case), effective 01/05/06.
Case No. 764254-2. The claimant worked part-time for the employer and ceased reporting to work as scheduled after he secured a full-time position with another employer. However, the claimant never informed the employer he was quitting and was subsequently terminated by the employer in accordance with their attendance policy for failing to report to work as scheduled. HELD: Section 207.045 of the Act, which provides that an individual who is partially unemployed and who resigns that employment to accept other employment that the individual reasonably believes will increase the individual's weekly wage is not disqualified for benefits, applies to situations in which an employee actually provides a resignation to his employer. Since the claimant merely abandoned his part-time job and did not advise the employer he was quitting to take another full-time job, he did not resign. Accordingly, the claimant is not entitled to the protection of Section 207.045 of the Act. Rather, the claimant is disqualified under Section 207.044 of the Act for violating the employer's attendance policy.
Case No. 776652-2, has been added to the Appeals Policy and Precedent Manual. It is located at MC 300.05. (first case), effective 01/05/06.
Case No. 776652-2. The claimant began working for the employer in October 1988 as a Park Ranger. State law changed and mandated each State Park treat their water and wastewater. These job duties were merged into the Park Ranger duties, and Park Rangers were required to obtain Class D Water and Class D Wastewater treatment licenses from the Texas Commission on Environmental Quality. In January 2005, the claimant was advised she had six months to obtain her licenses. The claimant continued working for the employer and took her exams. In July 2005, the claimant was discharged after she failed to obtain her licenses. HELD: In further refining policy set forth in Precedent Case No. 395031 (MC 300.05), the Commission concluded that the claimant's conduct in continuing to work for the employer after being apprised of the change in her hiring agreement constitutes an acceptance of those newly imposed terms and conditions. Consequently, the claimant's failure to obtain the required water and wastewater licenses constitutes mismanagement of her position of employment and misconduct under Section 207.044 of the Texas Unemployment Compensation Act.
Case No. 785689-2, has been added to the Appeals Policy and Precedent Manual. It is located at MC 300.40. (first case), effective 11/08/05.
Case No. 785689-2. The claimant, who worked at a residence for handicapped persons, had received warnings about her performance and was aware that her job was in jeopardy. The claimant's duties including handling documents that were used to make purchases for the residents. Just prior to the claimant's separation, she lost four of these documents and could offer no explanation for the loss. HELD: Discharged for misconduct connected with the work. The task that the claimant was expected to perform was simple. The claimant's unexplained loss of the documents constitutes negligence and therefore misconduct connected with the work.
Case No. 769877-2, has been added to the Appeals Policy and Precedent Manual at AA 150.15 effective 10/11/05.
The Commission removed Case 769877-2 (AA 150.15) from the Precedent Manual effective 8/26/09.
Case No. 747862, has been added to the Appeals Policy and Precedent Manual. It is located at VL 135.05 (first case), effective 09/06/05.
Case No. 747862.2. The claimant stopped performing services for the employer, a home health care provider, when restrictions were placed on his license which prohibited his continued employment. The claimant was a registered nurse and had been hired with no restrictions on his occupational license, as the Board of Nurse Examiners had not yet received paperwork regarding disciplinary actions from other states. As a result of receiving paperwork showing disciplinary action in the state of Utah approximately ten years earlier, and after meeting with the claimant, restrictions were placed on the claimant's license that prohibited him from working for a home health care provider. The claimant notified the employer he would be unable to continue working for them immediately upon learning of the imposition of those restrictions, as he otherwise would have lost his occupational license. HELD: The claimant's work separation was voluntary and without good cause connected with the work, as he was responsible for maintaining his professional license, and it was his actions which ultimately resulted in the placement of restrictions on his license that prevented his continued employment.
Case No. 747872-2, has been added to the Appeals Policy and Precedent Manual. It is located at MC 140.25 (first case), effective 08/31/05.
Case No.747872-2. The claimant was fired for falsifying his employment application. The claimant checked "no" to a question regarding criminal "convictions" within the last seven (7) years. The employment application did not inquire as to whether the claimant had ever pled guilty or no contest to a criminal charge. Some four (4) years earlier, the claimant had been charged with, and pled guilty to, assault with bodily injury, a Class A misdemeanor. The claimant received deferred adjudication for the offense which consisted of two years' probation and a fine. The claimant successfully completed probation and paid the required fine. Held: Not discharged for misconduct connected with the work. The claimant did not falsify his employment application. In light of the claimant's successful completion of the conditions of his probation, the claimant's response to the conviction question was, according to state law, correct. Specifically, the Texas Code of Criminal Procedure [Vernon's Ann.C.C.P. Art. 42.12§(5)(a) and (c)] provides, in summary and in part, that "…the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision." Upon satisfying the terms of probation, "…if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him."
Appeal No. 1551-CA-77 has been added to Section PR 450.10 in the Appeals Policy and Precedent Manual effective May 24, 2005. The case remains digested at MS 340.05 where it originally was placed.
The case listed below became a precedent case effective February 22, 2005.
Case No. 693452-2 to be digested in the Appeals Policy and Precedent Manual at AA 160.10.
Case No. 693452-2. The claimant had been advised by the Commission that she was required to make a minimum of three work search contacts each week in order to maintain eligibility to receive benefits. During the week in question, she applied for work at two businesses and visited a workforce center, where she performed a computerized job search. HELD: Available for work. Rule 28 does not limit work search contacts to in-person interviews or physical visits to job locations. Instead, the rule provides a non-exhaustive list of examples of activities that will suffice. Specifically provided in that list is the utilization of the resources available at workforce centers.
The following case was revised effective February 8, 2005.
Appeal No. 97-006341-10-060597 to be digested in the Appeals Policy and Precedent Manual at VL 150.20, VL 510.40, and VL 515.90.
Appeal No. 97-006341-10-060597. In the home health care referral industry, either the worker or the referral service may initiate reassignment. In this case, the claimant was removed from her current assignment at her own request because she was dissatisfied. When the employer offered claimant reassignment later that same week, claimant declined because the only way she could get to the new client's home was by bus. The employer had never furnished transportation. HELD: Separation is an issue that can only be determined after an examination of all the facts and circumstances. An employment relationship such as this one continues until one party clearly notifies the other party that the employment relationship has ended, even if there is some passage of time during which the employee performs no services and earns no wages. This employment relationship was ended by claimant's action of declining the new assignment offered to her. This action clearly notified the employer that the relationship had ended. Claimant's separation occurred when she refused reassignment, not when she requested removal from her previous client. Claimant's dislike of the only available means of transportation-riding the bus-does not constitute good cause to leave voluntarily, because transportation was claimant's responsibility.
The case listed below became a precedent case effective March 3, 2004.
Case No. 413444 to be digested in the Appeals Policy and Precedent Manual at MC 300.05.
Case No. 413444. The claimant, a sales assistant for an investment firm, was hired with the agreement that she would pass a "series 7" examination required by the Texas Securities Act. The claimant was initially given 90 days to pass the examination, and after failing it, was given an additional year to pass the test. The claimant was discharged after failing to pass the examination on four occasions. HELD: The Commission held that if an individual accepts a job with the understanding that continued employment depends upon the taking and passing of a subsequent test, the failure to pass that test constitutes misconduct connected with the work.
The case listed below became a precedent case effective March 1, 2004.
Case No. 523756-2 to be digested in the Appeals Policy and Precedent Manual at MC 135.05 and VL 135.05.
Case No. 523756-2. The employer is a licensed staff leasing services company. It entered into a staff leasing services agreement with the client for which the claimant worked. The staff-leasing employer did not require employees to contact them at the end of an assignment for placement with another client. The client discharged the claimant for failing to comply with a reasonable request. In its response to the notice of initial claim from the TWC, the employer reported that the separation occurred when the claimant left the client location. HELD: A staff leasing agreement establishes a co-employer relationship between the client and the staff leasing company. Each entity retains the right to discharge a worker. If the staff leasing services company does not invoke the notice requirement in Section 207.045(i), then Section 207.045(i) is not applicable. In this case, by not invoking the notice issue in its response to the TWC , the staff-leasing employer essentially ratified the actions of its co-employer client in relation to the work separation. Therefore, the Commission will analyze the separation from the client in determining qualification for benefits and, if applicable, chargeback to the account of the staff leasing services company.
The case listed below became a precedent case effective January 20, 2004.
Case No. 504981-3 to be digested in the Appeals Policy and Precedent Manual at MS 30.00.
Case No. 504981-3. The claimant was unable to participate in the first Appeal Tribunal because, after calling in as instructed in the 30 minutes before the hearing began, the Hearing Officer was unable to get through when returning the call. The claimant had called from a phone at a friend's house and, unknown to the claimant, the phone he was calling from had a call block feature that prevented it from receiving unidentified incoming calls. The Commission finds this constitutes good cause for nonappearance because the claimant made a good faith effort to participate.
The case listed below became a precedent case effective January 13, 2004.
Case No. 503040-2 to be digested in the Appeals Policy and Precedent Manual at PR 5.00.
Case No. 503040-2 has been removed from Section PR 5.00 in the Appeals Policy and Precedent Manual, effective November 1, 2005.
The case listed below became a precedent case effective November 10, 2003.
Case No. 361479 to be digested in the Appeals Policy and Precedent Manual at MS 600.05.
Case No. 361479. The claimant's daughter was eligible for child care services funded by the Tarrant County Workforce Development Board. According to Texas Workforce Commission rules, the daughter was able to self-arrange unregulated relative care with the claimant. Reimbursement was disbursed through a contractor of the Tarrant County Workforce Development Board. The contractor exercised no control over the manner in which the child care services were provided and did not offer any training to the claimant. It simply forwarded the payments to the claimant based on the time sheets she submitted. HELD: The services were performed for the benefit of the claimant's daughter, and she determined who was going to perform the service. The contractor did not exercise any control over how the childcare services were performed. Thus, the claimant's daughter should have been named as the last employing unit.
The case listed below became a precedent case effective July 7, 2003.
Case No. 395031-2 to be digested in the Appeals Policy and Precedent Manual at MC 300.05.
The claimant, an insurance agent working under a temporary license, was informed at the time of her hire that, in order to continue in her employment with the named employer, an insurance company, she would have to pass a licensing exam and thusly become a licensed insurance agent under the auspices of Texas State Law. After taking the test on multiple occasions and in each instance failing to pass the exam, the claimant's temporary license expired and, as the employer could not employ the claimant as an insurance agent without a license, the claimant was discharged. HELD: In Case No. 177177 the Commission expressly overruled the holding in Appeal No. 86-13685-10-092586 that a failure to secure certification in a timely manner was to be analyzed as an inability to perform and thusly not disqualifying. In the case at hand the claimant's employment with the named employer was entered into as the result of an agreed-upon understanding between the parties that the claimant's continued employment would be contingent upon her passing a licensing exam and thereby becoming a licensed insurance agent. The claimant's failure to do so in a timely fashion (prior to the expiration of her temporary license) constituted a mismanagement of her position of employment equivalent to misconduct connected with the work. Disqualification under Section 207.044.
The case listed below became a precedent case effective May 13, 2003.
Case No. 428646 to be digested in the Appeals Policy and Precedent Manual at VL 135.05.
The claimant quit her job with the employer, a staff leasing services company, by submitting a resignation letter giving two weeks notice to the employer's client. The employer had not given the claimant written notice to contact them on termination of her assignment at the client company. However, the claimant sent a copy of the letter to the staff leasing employer, thereby indicating that she was aware of her relationship with the employer. The claimant quit because of stress resulting from the demands of the job. The claimant did not discuss her concerns with the office manager of the client company, and did not discuss her concerns with a representative of the staff leasing services company because she did not want to appear to be circumventing the client's authority. At the time she resigned, her assignment with the client company had not been completed, and work was still available for the claimant. HELD: The claimant voluntarily quit her job by sending a copy of her resignation letter to the staff leasing services company. Under the facts of this case, Section 207.045(i) does not apply. The claimant voluntarily quit without good cause connected with the work when she initiated her separation without first discussing her job dissatisfaction with the client and the staff leasing services company.
The case listed below became a precedent case effective April 8, 2003.
Case No. 377319 to be digested in the Appeals Policy and Precedent Manual at MS 30.00.
The claimant did not participate in an appeal hearing because it was the second day of her new job and she did not feel she should ask her employer for time off. The claimant preadvised the Hearing Officer of her inability to participate in the hearing. HELD: The claimant established good cause for her failure to participate in the previous appeal hearing. Although the claimant did not ask her new employer for time off to participate in the hearing, we find that it was not unreasonable that the claimant was unwilling to risk any adverse consequences to her job of two days by asking for time off to participate in the hearing. Under these circumstances, where the claimant has only been working in a new job for a short period of time, the claimant has established good cause for her nonappearance within the meaning of Commission Rule 16, 40 TAC Section 815.16.
The case listed below became a precedent case effective November 8, 2002.
Case No. 302389 to be digested in the Appeals Policy and Precedent Manual at MC 190.15 and MC 140.30.
Case No. 302389. The employer discovered that the claimant, a custodian, had a trash bag of items that were found double bagged on her cart. When the claimant was sent home so the incident could be further investigated, the claimant wanted to take the items. Her request was denied. The investigation determined that these items were not trash or lost, but were taken out of the classrooms without authorization. The claimant was discharged for possession and control of the property of others, without authorization. HELD: Although claimant denied during the hearing that she had stolen the items, the employer provided a witness with firsthand testimony who indicated that he discovered the items double bagged on claimant's cart and when sent home, claimant wanted to take these items with her. The Commission concluded that this evidence was sufficient to establish that the claimant had possession and control of the items with intent to remove them from the school's premises, regardless of whether she ultimately succeeded in removing the items from the premises. The Commission concluded that the employer had presented sufficient evidence to overcome the claimant's firsthand denial, and therefore, the claimant was discharged for intentional wrongdoing and thus misconduct connected with the work.
The case listed below became a precedent case effective October 22, 2001.
Case No. 201718 to be digested in the Appeals Policy and Precedent Manual at MS 30.00.
Case No. 201718. The employer selected its office manager to be its primary representative for the Appeal Tribunal hearing. The office manager did not have firsthand knowledge of the issues to be discussed at the Appeal Tribunal hearing. The employer did not appear at the hearing when a medical emergency of the office manager's husband prevented her participation in the hearing. HELD: A party is entitled to be represented by an individual of its own choosing, irregardless of whether that individual has firsthand knowledge of the issues to be discussed at the hearing. Since the chosen representative for the employer in this case was unavailable due to an unforeseen medical emergency of a family member, the Commission concluded that the employer had established good cause for its failure to appear at the first hearing. Accordingly, the employer's petition for a new hearing was granted.
The case listed below became a precedent case effective May 7, 2001.
Case No. 177177 to be digested in the Appeals Policy and Precedent Manual at MC 300.05 and VL 515.15(2).
Case No. 177177. The claimant, a teacher, had taught for three years in the State of Texas under a temporary permit. For the claimant to continue teaching, a passing score on the Examination for Certification of Educators in Texas (ExCET) and the certification that this would have provided were necessary. The claimant took only one part of the exam during the summer. The claimant was separated from employment after she failed to receive a passing ExCET test score. HELD: Under these circumstances, the claimant's failure to become certified by the time school started for another year was a mismanagement of her position and constituted misconduct connected with the work. Disqualified under Section 207.044. In so ruling, the Commission expressly overruled the holding in Appeal No. 86-13685-10-092586 that failure to secure certification in a timely manner was analyzed as inability and thus not disqualifying.
The case listed below became a precedent case effective February 9, 2001.
Case No. 176943 to be digested in the Appeals Policy and Precedent Manual at MS 375.15.
Case No. 176943. The claimant was laid off from his position. He was not given advance notice of this separation. Five days after the separation, the claimant signed an agreement that he would waive any legal claims against the employer and that he would keep certain information confidential. In exchange for this agreement, the employer agreed to pay the claimant 11 weeks' worth of wages as "severance pay." Any violation of the agreement would cause the claimant to forfeit these payments. HELD: For a claimant to be disqualified under Section 207.049(a)(1) of the Act, the payments in question must be made as an actual substitute for advance notification of a separation. Here, the claimant was paid in exchange for his agreement not to sue the employer and to keep certain information confidential. Therefore, although this was determined with reference to the claimant's weekly salary, the employer received something of value from the claimant. No disqualification under Section 207.049(a)(1), as the wages were not in lieu of notice.
The case listed below became a precedent case effective February 9, 2001.
Case No. 172562 to be digested in the Appeals Policy and Precedent Manual at VL 135.05 and MC 135.05.
Case No. 172562. The employer sold its business. The claimant was offered comparable work with the new owner but declined the offer. HELD: When a company purchases an employer's business and the new employer offers the claimant comparable employment, a rejection by the claimant of the new company's affirmative job offer will be considered a voluntary resignation without good cause connected with the work.
The case listed below became a precedent case effective October 6, 2000.
Case Number 141500 to be digested at Section SW 150.20 in the Appeals Policy and Precedent Manual:
Case No. 141500. The claimant declined a job offer in Odessa due to the distance to the job of approximately 20 miles. The claimant had performed similar work and had accepted similar pay previously. She declined the job solely because she wished to work in her city of residence, Midland, and did not wish to commute to Odessa. Many individuals living in Midland and Odessa commute between the cities for employment. HELD: Distance to an offered job is not the sole factor to be considered in determining if the job location is suitable. Distance, travel time, and community customs are all factors which determine if a job location is suitable. Disqualified under Section 207.047 of the Act as the distance was not excessive and such commutes were customary in the area.
Appeal No. 1139-CA-67 (SW 150.20) of the Appeals Policy and Precedent Manual was expressly overruled and removed from the Precedent Manual by Case No. 141500.
The case listed below became a precedent case effective September 12, 2000.
Precedent Digest for Case No. 109882 to be digested at MS 30.00.
Case No. 109882. The claimant failed to appear for a hearing in this case because of the unavailability of her legal counsel. The claimant had retained an attorney, forwarded her documentation to the attorney, and intended to appear and have her attorney with her. Two days prior to the hearing, the attorney learned that he had a job interview. The interview conflicted with the hearing and could not be rescheduled. The claimant contacted the hearing officer on the day before the hearing. She was advised that if she were to appear for the hearing she would be unable to petition for a new hearing. HELD: The Commission concluded that parties have the right to be represented by counsel. When a party has secured counsel, and counsel is unavailable for the hearing, the Commission will carefully examine the reason for counsel's unavailability in determining whether unavailability of counsel constitutes good cause for not appearing under the specific circumstances. In this case, the claimant had secured an attorney who was unavailable due to an important appointment, which could not be rescheduled. The claimant notified the hearing officer prior to the date of the hearing and was advised the hearing could not be postponed but the possibility of a new hearing was available to her. If the claimant had gone forth with the scheduled hearing, she would have done so unrepresented and without the documentation that was relied on in the hearing. Given these circumstances, the Commission concluded that the claimant had shown good cause for her failure to appear at the hearing. Accordingly, the claimant's petition for a new hearing was granted.
The case listed below became a precedent case effective May 4, 2000.
Appeal Number 99-001852-10-022300 to be digested at VL 450.20 and MS 510.00.
The claimant worked four hours for the employer on December 27, 1999. He did not work a full shift on this date due to inclement weather. The claimant did not work on December 28, 1999, due to inclement weather. The employer sent crews back to work December 29, 1999, since the weather had cleared up. However, the claimant did not report for work on this date. The claimant returned to work on December 30, 1999, and worked this day and the following day. The claimant filed his initial claim for benefits on December 28, 1999. The claimant knew he should return to work when the weather improved. HELD: The employment relationship continues whenever inclement weather causes a brief cessation of work, such as in this case, of three days or less. When a claimant files a claim during this time, a separation occurs and the claimant must show good cause connected with the work to avoid a disqualification for leaving without good cause connected with the work. The record reflects no evidence that the claimant had good cause connected with work for quitting, therefore, we will reverse the Appeal Tribunal decision by disqualifying the claimant from the receipt of benefits under Section 207.045 of the Act.
The case listed below became a precedent case effective February 18, 2000.
Appeal Number 99-011775-10-121799 to be digested at CH 10.30.
The employer is a horse racetrack which, in accordance with the Texas Racing Act, is subject to regulation by the Texas Racing Commission. The Texas Racing Act provides that, as to each horse racetrack participating in racing with pari-mutuel wagering, the Texas Racing Commission shall allocate the number of racing days which will constitute that track's annual racing season. The claimant in this case was an employee who was laid off at the end of the employer's allocated racing season. HELD: Although the employer could no longer conduct horse races without jeopardizing its license and, as a result, may have been forced by economic necessity to lay off the claimant, the separation was merely the indirect result of the application of a state statute. In accordance with the court's ruling in Retama Development Corp and Retama Park Management Co., L.C. v. TWC and Brown, 971 S.W.2d 136 (Tex. App.—Austin 1998), Section 204.022 (a) (2) of the Act is not applicable, and the employer's account is subject to charge. The Commission noted that Appeal No. 93-004252-10M-012194 was inconsistent with the holding in Retama v TWC, supra, and directed that this precedent be removed from the precedent manual.
The case listed below became a precedent case effective January 19, 2000.
Appeal Number 99-011197-10-111299 to be digested at VL 135.05.
The claimant was employed by a temporary help firm. The claimant was aware that the employer's policy required employees to make themselves available for reassignment within the 24-hour period immediately following the close of the last involved temporary position. The employer's policy indicated that availability for reassignment was to be accomplished via the employee signing in on the employer's availability logbook. While the claimant went to the employer's office within 24 hours of having been informed of the close of his last assignment, the claimant did not sign in the employer's availability logbook at that time and was thus not considered to be available by the employer. HELD: The claimant was voluntarily separated from his last position of employment without good work-connected cause. The employer's requirement that employees make themselves available by signing in the logbook constituted a reasonably promulgated policy and the claimant's failure to follow that policy constituted a failure on the claimant's part to make himself effectively available for reassignment as per Section 207.045(h) of the Act. The claimant was disqualified from the receipt of benefits.
The case listed below became a precedent case effective November 16, 1999.
Appeal Number 99-007805-10-082099 to be digested at PR 275.00.
Determinations made under Sections 201.011(1), including requests to use an alternate base period, and 208.021 of the Act fit under the "wage credit/right to benefits" category which, pursuant to Commission Rule 32(i)(1), 40 TAC § 815.32(i)(1), present a one-time exception to the timeliness rules. A late appeal to the Appeal Tribunal on such issue, if made within the same benefit year as the determination on appeal, will be deemed timely. However, once an Appeal Tribunal decision on the issue has been made and mailed, the appeal time limits in Chapter 212 of the Act will apply.
The case listed below became a precedent case effective November 15, 1999.
Appeal Number 99-008549-10-090999 to be digested at VL 495.00, VL 135.05, and MC 135.05.
The claimant participated in a training program offered by the employer, earning an hourly rate while learning job skills. The claimant entered into the program with the knowledge that it was a work skills training program, designed to provide her with the skills needed to gain productive work. Separation occurred when she successfully completed the program. HELD: The Commission found that the claimant's separation from the skills training program was analogous to the circumstances in work study participant cases. The claimant's training was structured to continue only for the length of the work skills training program. As in the cases of work study participants, the work was not structured to continue beyond the end of her program participant status. When the program ended, the claimant's work ended. The claimant was aware when she entered into the program that this would be the case. Accordingly, the Commission held that the claimant voluntarily left the last work without good cause connected with the work.
The case listed below became a precedent case effective October 18, 1999.
Appeal Number 99-007057-10-072899 to be digested at VL 135.05.
The claimant was employed by a temporary help firm. The claimant was aware that the employer's policy required employees to contact the employer for reassignment within 24 hours of the close of any temporary position and that contact for reassignment was to thereafter be made on a daily basis. A failure to maintain such contact was noted as possible cause for the denial of unemployment benefits. The claimant was contacted by an employer representative and informed that her most recent temporary assignment had ended. The claimant notified the employer at that time that she was available for reassignment. The employer had no further work available at that time. The claimant did not thereafter make herself available for reassignment on a daily basis. The claimant filed for unemployment benefits on the day following the close of her last assignment. HELD: The claimant was involuntarily separated under non-disqualifying circumstances. The claimant effectively made herself available for reassignment when she immediately informed the employer of her availability for further assignments when told of the ending of her temporary assignment. In doing so, the claimant fulfilled the requirement set out in Section 207.045(h) of the Act that the temporary help employee contact the temporary help firm for reassignment upon completion of the last assignment. Under Section 207.045(h) of the Act, the claimant was not required to call the temporary help firm on a daily basis to report her continued availability once she made herself available for reassignment during her initial contact with the employer where she was informed that her assignment had ended. The claimant was laid off due to a lack of work when, having made herself available for reassignment, no further work was offered. No disqualification under Section 207.044.
The case listed below became a precedent case effective June 14, 1999.
Precedent Case to be digested at Section VL 495.00 (2)
Appeal No. 98-001421-10-021099. The claimant was a student at Prairie View A&M University and was a participant in the university's work study program. Student status was a requirement for participation in the work study program. Upon her graduation in August 1998, the claimant ceased her participation in this program. HELD: The Commission found the current case similar to Appeal No. 86-2055-10-012187 and Appeal No. 983-CAC-72. In the current case, the claimant's participation in the work study program had not been structured to extend beyond her graduation and the end of her student status. When the claimant graduated, she was no longer able to meet the requirements for participation in the work study program. Therefore, the Commission does not agree with the Appeal Tribunal's conclusion that the claimant was discharged. Rather, the Commission concludes that the claimant voluntarily left her last work in the work study program without good cause connected with the work. It is the opinion of the Commission that work study programs for students are to be encouraged. Therefore, this case is designated as a precedent at VL 495.00, and Appeal No. 2472-CA-77 (VL 495.00) of the Commission Appeals Policy and Precedent Manual was expressly overruled and removed from the precedent manual.
The case listed below became a precedent case effective May 14, 1999.
Precedent Case to be digested at Section MC 45.10
Appeal No. CA 98-001381-10-021099. The claimant voluntarily resigned because he was demoted from store director to a customer service representative. The demotion occurred when the employer learned from a third party that the claimant had misappropriated $1,000 of the employer's money to assist a friend. The claimant admitted his guilt. This was a serious infraction, which normally resulted in discharge. The employer elected to demote the claimant and afford him an opportunity for rehabilitation based on his past employment record. HELD: Disqualified. Voluntary leaving without good cause connected with the work. When considering the seriousness of the offense, the demotion did not provide the claimant with good cause for quitting. The Commission distinguished this case from Appeal No. 2340-CA-77, MC 45.10, and noted that in the present case, it was claimant's illegal actions that ultimately resulted in the claimant's demotion and separation while in Appeal No. 2340-CA-77, the problem was one of attitude, which was not a violation of law and did not lead to a direct loss of a considerable sum of money to the employer.