How does the Virginia Employment Commission define “discharge” under the misconduct defense?

Employers often defend claims for unemployment benefits in Virginia on the ground that the employee was discharged for misconduct related to the work. To prevail on this defense, the employer must first show that there was an actual discharge.

A discharge occurs when the employer separates the employee from employment. A discharge is involuntary on the part of the claimant and is often not desired.

A discharge does not have to be final. For example, an employee may be separated from his employment because of a disciplinary suspension for an indefinite period. This sometimes happen when criminal charges are pending and the employer is waiting to see the final disposition of the charges. An employee may seek unemployment benefits under such a scenario because he is involuntarily separated from his work and is not allowed to return until a circumstance is met in the future.

Nor does it have to be direct and explicit, with the words “you’re fired.” If there is a dispute over whether there was a discharge, the VEC will look at whether the claimant could have continued his employment. We’ll discuss the VEC’s case law on these ambiguous situations in my next post.

Corey Pollard is an employment lawyer in Richmond, Virginia. He handles workers’ compensation, Social Security disability, and unemployment claims.