36. Did the Claimant Leave Work Due to a Felony or Misdeameanor Conviction?
Leaving work because of a conviction of a felony or misdemeanor is disqualifying under a separate clause of G.L. c. 151A, § 25(e)(3). A disqualifying separation must result directly from the conviction, either because the employer fired the claimant or because the claimant was incarcerated. Glasser v. Director of the Div. of Employment Security, 393 Mass. 574, 471 N.E.2d 1338 (1984) (claimant failed to prove he would have been reinstated but for unlawfully excessive sentence).
A discharge due to being charged with a crime or due to incarceration before trial is not disqualifying under § 25(e)(3); nor is a discharge because of admission to sufficient facts to warrant a finding of guilty. Wardell v. Director of the Div of Employment Security, 397 Mass. 433, 491 N.E.2d 1057 (1986); Santos v. Director of the Div. of Employment Security, 398 Mass. 471, 498 N.E.2d 118 (1986).
An individual who notifies her employer of an inability to continue work because of incarceration and who subsequently is not convicted of the offense charged is not subject to disqualification under § 25(e)(3). SRH § 1352; BR-110511 (12/2/2009) (reversing disqualification on the grounds of unauthorized leave where claimant who was incarcerated was not convicted).
A claimant terminated for a DUI conviction resulting in loss of his driver’s license that interferes with commuting to work does not leave work either voluntarily or by constructive quit. Where driving is not directly within the scope of the employee’s job, but the employer terminated the employee nonetheless, the claimant cannot be viewed as having created a “bar” to his continued employment simply by losing an unrestricted driver’s license. Moreover, the separation is not a voluntary quit, rather, claimant was discharged under § 25(e)(2). BR-2028524 (3/10/14).