STATE OF l\1ichiga...:~ EMPLOX'l:-1ENT SEClJRlTY BOARD OF RE\IlEW. Appeal Docket No. B DECISION OF BOARD OF REVIEW

Transcription

1 STATE OF l\1ichiga...:~ EMPLOX'l:-1ENT SEClJRlTY BOARD OF RE\IlEW In the Matter of the Claim of AKIRA N. HILTON, Appeal Docket No. B Claimant Social Security No. -~ MEIJER STORES LIMITED, Employer DECISION OF BOARD OF REVIEW This case is before the Board of Review as a result of the employer's November 4, 2003, appeal from an October 14, 2003, Admitristrative Law Judge [Referee] decision. The October 14, 2003, Referee decision reversed a Sep_t~~- J_Q, ~QQ]_, Une_m,_P-lQym~uLlns.uranc,e~ A~~[Agency]....:.:...-=-.:-= &ii"terminarton-a.na.=:found-'tlie clmant was not disqualified for benefits under the voluntary leaving provision of the Michigan Employment Security [MES] Act, Section 29(1)(a). After reviewing the record, we find the Referee's decision must be reversed. Our reasons are as follows. The involved employer, Meijer Stores Limited, employed the claimant, Ak:ira Hilton, as a customer services representative on a part-time basis. On December 5, 2002, the claimant voluntarily left her employment with Meijer because it conflicted with claimant's full-time job and other responsibilities. Ten days later, on December 15, 2002, the claimant's full-time employer, Wallside Windows, discharged the claimant for non-disqualifying reasons. Section 29(1)(a) of the Michigan Employment Security Act provides that: (1) An individual is disqua.il:fied from receiving benefits if he or she: (a) Left work voluntarily without good cause attributable to the employer or employing unit. An individual who left work is presumed to have left work voluntarily without good cause attributable to the employer or employing unit. An individual claiming benefits under this act has the burden of proof to establish that he or she left work involuntarily or for good cause that was attributable to the employer or employing unit However, if the individual has an established benefit year in effect and during that benefit year leaves unsuitable work within 60 days after the beginning of that work, the leaving does not disquili:fy the individual. (Emphasis supplied.)

2 Pagel Good cause exists when the circumstances that prompted the claimant's leaving would have caused a reasonable, average and otherwise qualified employee to leave her employment. See Carswell v Share House, Inc., 151 Mich App 392 (1986). Absent any evidence or allegation to the contrary, the Mei.j~ leaving standing alone would be disqualifying for purposes of unemployment insurance but for the possibility that the unusual sequence of events presented here and discussed below would change that outcome. In the instant matter, the claimant left her Meijer employment because that part-time work conflicted with her full-time job and other responsibilities. While this may have been a good personal reason, it was not attributable to the employer. Therefore, we find the claimant is disqualified for benefits D.nder the voluntary leaving provision of the 11ES Act, Section 29(1)(a). Accordingly, the Referee's decision must be reversed_ Having reached our conclusion in this matter, it is incumbent upon us to address a circuit court decision which found that a claimant who leaves part-time employment and later loses her fulltime job is :r.!2!_ disq!h'.]ifi~~ as.~llch_ a claimfmt can only be_ found _to. _have~~left..w:ork'..:_ifher_. =-=~~--"--=-- ---'- -= -=-::..:: --=-== -=:r::::e-::::slgnationresulteain ''total unemploymenf' and not just "one less job." See Dickerson v Norrell. Health Care, Inc., Kent Circuit Court No AE September 21, While circuit court decisions are not binding precedent on the Board, we take this opportunity to address that decision's reasoning. In Dickerson, it appears the circuit court addressed what, at first blush, presents itself as a gross inequity: that although the claimant had been lrud off from a full-time job for non-disqualifyjng circumstances, the claimant was nevertheless ineligible for benefits solely because the claimant had voluntarily left an unrelated part-ti.id.e job shortly before. In attempting to res9lve that apparent inequity, the court fashioned an argument which concluded a claimant could not be found to have "left employment" unless her leaving resulted in total unemployment. Not oruy is the court's reasoning at odds with the plain and unambiguous language of the statute, it ignores the obvious casualty in this battle against inequity - that being the first employer that the claimant quit. This employer faces charges to its account and tax rate increases even though it in no way contributed to the job separation of the claimant. 1 Furthermore, the decision allows for at least one other significant unintended result: whenever a claimant holds more than one job, it would permit them to quit a job - even a full-time one even without "good cause" - and still be able to draw unemployment benefits so long as the claimant continued to work at least part-time 1 In Lafferty v Review Board, 600 NE 2d 1378 (Ind. App. 1992), the court considered an equal protection argument contesting the application of a statutory ten week work requirement for an employee who left employment to accept a better paying job and was then fired by the second employer without just cause. In upholding the requirement, the court found that "the State has a legitimate interest in protecting the first employer who would have to bear a greater financial and evidentiary burden if an employee who is discharged before meeting the ten week requirement with the second employer is deemed eligi'ble for benefits because. he was dismissed 'without just cause."' Further, the court held that ''Employment stabilization and protection of the first employer's interest are legitimate state interests supporting the application of the ten week rule to employees who are discharged, with or without just cause, by the second employer." Supra at l3 83.

3 Page3 and was not totally unemployed. In such a circumstance, not only would the former full-time employer's account be charged for the benefits paid, but the current part-time employer would also be rendered a casualty as its account too would be charged for a portion of the benefits, even though neither employer in any way contributed to the claimant's job separation. We highly doubt that the court intended to replace one inequity with another or to create a loophole in which claimant's could quit an employer without good cause and draw benefits against that employer's account. In reaching its conclusion, the court in Dickerson cited published decisions of courts in other states. However, as the court acknowledged in its decision, decisions from other jurisdictions are not binding in Michigan. While we have considered these opinions, we note that the Board of Review is the body created by Michigan's legislature and tasked with the duty of overseeing the 1vfichigan El..Uployment Securit-y Act Given our experience and knowledge of Michigan's statute, we vote to avoid the unintended consequences such as would occur if the court's rationale was adopted. Due to these urrintended consequences, if change is necessary, it should come from the legislature OrlJ:ie reasons stateoaoove, the Referee's October 14, 2003, decision is reversed For the reasons stated above, the claimant is disqualified for benefits under the voluntary leaving provision of themes Act, Section 29(1)(a). This matter is referred to the Agency for action consistent wi tb. this decision. Kathleen Markman, Chair MARK E. KAUFMANN. MEMBER, DISSENTillG: I respectfully disagree with the Board majority. My reasons are as follows. 2 For example, See Plein v Deoar1ment of Labor, 800 A2d 757, 759 (Md. 2002), which cites to a statutory provision where Maryland's legislature addressed this exact issue: "(2) A claimant who is otl:ierwise eligible for benefits from the loss of full-time employment may not be disqualified from the benefits attributable to the full-time employment because the claimant voluntarily quit a part-time employment, if the claimant quit the part-time employment before the loss of the full-time employment" Notably, the legislature also provided pro rata relief from charges to the part- time employer. Id. at 762.

4 Page4 The facts in this matter are not in dispute, the claimant left her part-time employment and then shortly thereafter unexpectedly lost her full-time job. Under such circumstances, the claimant should not be disqualified for benefits as she C3Il..not be considered unemployed unless the claimant's first separation resulted in her total unemployment, not just one less job. See Dickerson v Norrell Health Care. Inc., Kent Circuit Court No AE, September 21, 1995; McCarthy v Iowa Employment Security Commission, 247 Iowa 760 (April 4, 1956); Brown v Labor & Industrial Relations Commission, 577 SW2d 90 (MO Appeal, 1979); Gilbert v Hanlon, 214 Neb 676 (1983); and Merkel v HIP of New Jersey, 240 NJ Super 436 (1990). Accordingly, I would affirm the Referee's decision and find the claimant is not disqualified for benefits under the voluntary leaving provision of the :MES Act. The majoiity takes pains to construct a scenario in which a claimant with multiple jobs could "game" the unemployment compensation system to partially separate from work while maintaining eligibility for benefits chargeable to her employers. Tnat scenario is unlikely and speculative. The undeniably real situation before us, which occurs with some regularity, is that of ~~Q_~e~ yyil;lg_to ge~ _ah~?d QY. t?king_ on_two_jobs, finding_ she cannot manage both, maklng. the _.::.-= ::_ - rationruciecision to quit the part-time position v;'ith the expectation of keeping her full-time work, only to unexpectedly lose that position too. According to the majority, the proper outcome is for claiinant to ys;lj_nd up with no jobs and no unemployment compensation. Not only does it appear claimant is being penalized for being ambitious beyond her capability, but this injustice is contrary to the overarching spirit of the MES Act, set forth in Section 2 - ''the setting aside of unemployment resources to be used for the benefit of persons unemployed through no fault of their own." In the alternative, I argue that claimant is not subject to disqualification under Section 29(1)(a) because she is entitled to relief by operation of Section 29(5) of the Act - the "leaving ~o accept" provision. Section 29( 5) provides in relevant part that "If an individual leaves work ' to accept permanent full-time wor:k with another employer and performs semces for that employer [Section 29(1)(a) does not appfy]." The claimant in this matter was employed in: both her "full-time" and "part-time" positions as an "at-will" employee. At-will employment was discussed in Toussaint v Blue Cross, 408 :M.ich 579, : ''Firmly established in.michigan is the general rule thaf in the absence of distinguishing features or provisions, or a consideration in addition to the services to be rendered, contracts for life, or permanent employment are indefinite hirings terminable at the will of either party." Hor.ace Gay Wood in his seminal treatise Master & Servant (Albany: Parsons, 1877) p. 272, which popularized and gave substance to the at-will employment doctrines states, "A hiring a± so much a day, week, month or year, no time being specified, in an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve." (emphasis added). -

5 B Page 5 The performance of the work offered by the employer in an at-virill employment situation is in essence an acceptance of a new contract for hire for the period that the employer has agreed to pay the employee for that work. In the instant matter the claimant was paid hourly at both her part-time and full-time positions. She quit her part-time position (Meijer's) in order to accept full-time permanent employment (Wallside Windows). The fact that on other occasions, even on a daily basis, she had accepted this employment (Wallside Windows) and continued to be employed at her part-time job (Meijer) does not alter the at-will employment relationship nor does it alter the acceptance of the offered work on a daily or even hourly basis at the full-time position. The position at Wallside Windo"ws meets the unemployment agency standard for full-time permanent employment. Therefore, I would find the claimant not.disqualified both under the Dickerson standard outlined above as well as under Section 29(5). As the Board majority has chosen to do otherwise, I must dissent. _: ::.: =. -- _-::.:-c.::: =-..:.:. -=- ::.:.. _:_ --=~~=.:..:..:..:.::...:..:...:....:_...:.;: #dr~ _ Mark E. KaUfui~ MAILED AT LANSING, MICIDGAN. AUG This decision will become final unless a written request for rehearin~ to the Board OR appeal to the appropriate circuit court is RECEIVED on or before SEP. 3 0 L0.04 TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME.