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 Sec., 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 Sec., 397 Mass. 433, 491 N.E.2d 1057 (1986); Santos v. Director of the Div. of Employment Sec., 398 Mass. 471, 498 N.E.2d 118 (1986).
An individual who notifies his or 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).