Quiet Quitting and the Clanking Scales of Justice

Read this interesting article related to labor and employment law written by David Olshan of Nevada Legal Services for the Clark County Bar journal Communiqué (April 2023).

“Quiet Quitting” describes employees who do a minimal amount of work to avoid getting fired. Nevada remains an at-will employment state, however, meaning a quiet quitter may be fired for nearly any reason. Or the quiet quitter may actually quit. This article will explore whether the “Fired Quiet Quitter” (FQQ) or the “Actual Quitter” (AQ) qualify for unemployment benefits (UB) in Nevada.

FQQ would implicate the misconduct standard and, if FQQ violated NRS 612.385, Nevada’s misconduct statute would disqualify FQQ from collecting unemployment benefits. AQ poses a different problem. NRS 612.380 denies unemployment benefits to anyone who quits their last or next to last employment without good cause.

We will deal with AQ first. The “good cause” requirement provides some objective standard to judge whether the employee qualifies for UB. One Nevada case addresses the elusive concept of “good cause.” In Dolores v. State, 416 P.3d 259 (Nev. 2018), the Supreme Court of Nevada held that if an employee is confronted with a “quit or be fired” decision, the quit lacks good cause and the employee would not be eligible for UB. From the broader perspective, quitting because you find no value in your work would also lack good cause.

Nevada does not have any other guidance on this issue. California, however, has regulations that track the majority view in the United States. California defines “good cause” as

when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances.

Johar v. California Unemployment Ins. Appeals Bd., 83 Cal. App. 5th 259, 277-178 (Cal. App. 2022) (citing EDD Regulations, § 1256-3, subd. (b)).

Nevada’s Employment Security Division (ESD), the agency responsible for administering UB in Nevada, has a similar, informal policy of requiring the employee to exhaust all reasonable alternatives prior to quitting. See Nevada Unemployment Compensation Program Appeals Handbook (Nov. 2018).

Thus, good cause requires factors beyond your control causing you to quit after exhausting all reasonable alternatives in order to qualify for UB. For example, if AQ has post-traumatic stress disorder (PTSD) that is triggered by loud noises and asked the boss for earplugs or a change in job location to a quieter environment but the boss said no, AQ might qualify for UB because AQ explored reasonable alternatives and the PTSD made less noise necessitous and compelling.

FQQ has a different analysis. If FQQ is fired, then FQQ would not be eligible if ESD determined that FQQ’s quiet quitting constituted misconduct. The 1968 case of Barnum v. Williams defines “misconduct” as a deliberate or intentional violation of the employer’s rules or careless or negligent conduct showing a substantial disregard of the employer’s interests. 436 P.2d 219, 222 (Nev. 1968). Inefficiency or inability to perform the work and “ordinary negligence in isolated instances, or good faith errors in judgment . . . are excluded in the definition of misconduct.” Id. Therefore, FQQ’s quiet quitting would not constitute misconduct because FQQ did not violate any work rule.

On the other hand, FQQ’s quiet quitting could be misconduct if it caused the employer to miss critical deadlines, sales, or other important employer interests. For example, we see many soft count casino employees denied UB because they miscounted. While this seems like ordinary negligence, the employee’s culpability will be increased if the conduct results in a loss of money.

So, most soft count mistakes result in a denial of UB and FQQ might similarly be denied if his quiet quitting directly resulted in the employer losing money.
What can we take away from this article? Quiet quitting deals with a broader issue of respect for employees and allowing them control over their work lives. Yet, simple dissatisfaction with your job would not be good cause for actually quitting for purposes of UB. If you are fired for quiet quitting, then you would be eligible for UB if your quiet quitting did not violate any work rule and did not result in any direct monetary loss to the employer.

About this article: This article was originally published in the “Administrative Law” issue of Communiqué, the official publication of the Clark County Bar Association, (Apr. 2023). See https://clarkcountybar.org/member-benefits/communique-2023/communique-apr-2023/.

About the author
David Olshan

David Olshan is the Litigation Director at Nevada Legal Services, focusing on unemployment benefits, pandemic unemployment assistance (PUA), tenant’s rights, and consumer matters affecting low-income residents. Nevada Legal Services is Nevada’s only statewide nonprofit legal aid organization providing free civil legal aid in every county.

© 2023 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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