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24.11.454A    LEAVING OR DISCHARGE FROM WORK--SUSPENSIONS

(1) (a) When a worker gives a valid notice of leaving work to an employer and is discharged by the employer prior to the intended date of leaving, the worker is considered to have left work as of the intended date of leaving. The worker's discharge is considered to have been for reasons other than misconduct, provided that the discharge was solely in response to the notice of leaving or for other reasons not constituting misconduct. To be considered a valid notice of leaving, the notice must be formal, unconditional, specific as to an intended date of leaving, and be communicated by the individual worker to the employer or to an agent of the employer authorized to receive such notices. If the notice is not valid, the worker will not be considered to have left work, but only to have been discharged for reasons other than misconduct, provided that the discharge was solely in response to the notice of leaving or for other reasons not constituting misconduct.

(b) In those instances where a worker attempts to retract a valid notice of leaving and the employer does not accept the retraction, the worker is considered to have left work as of the intended date of leaving.

(2) The department applies the following rules to determine the applicable date of separation from employment:

(a) When an employer gives a valid notice of termination to a worker and the worker leaves work prior to the intended date of termination, the worker is considered to have been discharged as of the intended date of discharge. If the period of time between the worker's leaving and the intended date of discharge is four weeks or less, the worker is considered to be unavailable for work during that time as provided in ARM 24.11.452A provided that the worker's leaving was solely in response to the notice of discharge or for other reasons not constituting good cause attributable to the employment. If the period of time between the worker's leaving and the intended date of discharge is more than four weeks, the worker is considered to have left work as of the date of leaving, provided that the worker's leaving was solely in response to the notice of discharge or for other reasons not constituting good cause attributable to the employment. To be considered a valid notice of termination, the notice must be formal, unconditional, specific as to the individual worker and as to the intended date of termination, and be communicated to the individual worker by the employer or by an agent of the employer authorized to give such notices. If the notice is not valid, the worker will not be considered to have been terminated, but only to have left work without good cause attributable to the employment, provided that the leaving was solely in response to the notice of discharge or for other reasons not constituting good cause attributable to the employment.

(b) In those instances where an employer attempts to retract a valid notice of termination and the worker does not accept the retraction, the worker is considered to have been terminated as of the intended date of termination.

(3) A worker on temporary layoff who informs the employer of the worker's intention not to return to work following the temporary layoff or who simply does not return to work following the temporary layoff is considered to have left work as of the date the worker would have been recalled to work, provided that work was available in the worker's position at the time the worker would have been recalled.

(4) A worker is considered to have constructively left work when the worker committed an act or omission that made it impracticable for the employer to utilize the worker's services and, for that reason, resulted in the worker's discharge, provided that the worker knew or should have known that the act or omission could jeopardize the worker's job and possibly result in discharge.

(a) As an example, a worker has constructively quit if the worker accepts employment on specified conditions and the worker fails to meet those conditions through the worker's own fault. Such conditions may include, but are not limited to, failure to report for work due to incarceration, failing to meet license or permit requirements for employment, or failing to maintain insurability. These examples are not meant to be exclusive reasons for a constructive quit.

(5) (a) When a worker accepts work of a limited duration where the duration is established by the employer, or by a client of the employer in the case of a temporary service contractor, the worker is considered to have been laid off due to a lack of work, rather than to have left work, at the end of the duration agreed upon, provided that the worker's separation was due only to the completion of the work or to the expiration of the time allotted for completion of the work.

(b) When an employer employs a worker for a limited duration specified by the worker, the worker is considered to have left work, rather than to have been laid off due to a lack of work, at the end of the duration specified by the worker, provided that the worker's separation was due only to the expiration of the duration specified by the worker and that there was continuing work available in the worker's position.

History: 39-51-301, 39-51-302, MCA; IMP, 39-51-2302, 39-51-2303, MCA; NEW, 2000 MAR p. 3523, Eff. 12/31/00; AMD, 2006 MAR p. 916, Eff. 4/7/06.

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