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24. Was the Separation For Good Cause?

ALERT:   IN LIGHT OF THE COVID-19 EMERGENCY, ASPECTS OF THE UI PROCESS HAVE BEEN MODIFIED.  VISIT https://www.masslegalservices.org/covid-19-and-ui FOR CURRENT INFORMATION.

Even if the separation is voluntary, an employee is entitled to UI if the underlying reason is for good cause attributable to the employing unit or its agent. The circumstances leading to the separation need not be company policy or known to policy‑level management in order to constitute good cause, as long as the supervisory‑management personnel appeared to have authority to act as they did.

In good-cause quit cases, DUA generally requires claimants to bring the issue to their employer’s attention and take reasonable steps to try to resolve the problem before quitting. This could include using any available appeal or grievance procedure, formal or informal, to try to resolve it. In some situations, this requirement may be met by something as simple as the employees' bringing a problem to the attention of their supervisor.

On the other hand, DUA will sometimes attempt to impose a requirement that employees pursue a grievance to the highest possible level. Advocates should be aware that the requirement of bringing the problem to the employer’s attention is not statutory. They should be prepared to argue that, under the employee’s circumstance, it was reasonable to forgo the complaint procedure entirely or to stop after the first level. In cases involving allegations of sexual, racial, or other unreasonable harassment, claimants need only show that the employer knew or should have known of the harassment, and “need not show that [they] took all or even ‘reasonable’ steps to preserve [their] employment.” Tri-County Youth Programs v. Acting Deputy Director of the Dept. of Employment & Training, 54 Mass. App. Ct. 405, 413, 765 N.E.2d 810, 817 (2002). G.L. c. 151A, § 25(e), ¶ 5, 430 CMR 4.04(5)(c). (See Question 26.)

Reasonable disciplinary action is not good cause for leaving. Leone v. Director of the Div. of Employment Security, 397 Mass. 728, 731, 493 N.E.2d 493 (1986) (bank branch manager disqualified for quitting after being warned about inability to get along with supervisor). See also Fergione v. Director of the Div. of Employment Security, 396 Mass. 281, 286, 485 N.E.2d 949 (1985). However, the Board of Review held that where the record established that the claimant received an unreasonable unpaid suspension from work that was inconsistent with the employer’s own disciplinary policy, the claimant had good cause for leaving work. BR-118451 (7/15/11).

Good cause is most often found where the employer violates the employee’s rights. The AH has listed various workplace right. AH c. 8, Appendix. Additionally, good cause is found where an employer fails to correct unsafe or unhealthy work conditions, reduces the employee’s compensation, subjects the employee to unfair or unduly harsh criticism, or changes the work to something “antithetical” to that for which the employee was hired.

The Court affirmed the Board’s ruling that the leaving was for good cause attributable to the employer in a matter “where the claimant left work voluntarily because her supervisor subjected her to unreasonable treatment by threatening to withhold her pay and confining her in a small room where she felt unable to leave.” Workforce Unlimited, Inc. v. Ascencio, 86 Mass. App. Ct. 1109, 14 N.E.3d 968 (Table) (unpublished decision, August 29, 2014). The Board also found that a claimant left for good cause when he repeatedly complained to his employer about failure to pay overtime in violation of the Massachusetts Minimum Fair Wage law without remedy. BR-0025 4741 79 (3/25/19).

Where a claimant was required to undergo an unpaid drug test in violation of wage and hour laws, the Board found good cause to quit. BR-116407-A (5/20/11) (Key) A claimant has good cause to quit where an employer demands that the claimant violate safety regulations. BR-125248 (5/3/13). Where a claimant believed the employer’s policies posed a safety risk to employees, and OSHA cited the employer for several safety violations, the Board found that the claimant had a reasonable basis to believe the employer’s working conditions were unreasonably dangerous. BR-119197 (2/13/12) (Key) Further, the Board found that a claimant's refusal to sign a document that she reasonably believed would affect her rights under her union’s collective bargaining agreement or cause her to lose her job. A refusal to sign such a document does not constitute a voluntary quit. Pulde v. Director of the Div. of Unemployment Assistance, 84 Mass. App. Ct. 1122, 998 N.E.2d 375 (Table) (unpublished opinion, 2013).

The Board of Review found a claimant entitled to UI where she quit her job because the performance of routine duties became detrimental to her physical health where her preexisting health condition worsened. BR-109817 (12/22/09).

In Guarino v. Director of the Div. of Employment Security, 393 Mass. 89, 469 N.E.2d 802, 805 (1984), remand was required for findings on whether the claimant, a fish packer, was required to perform additional duties that were not part of her job, and whether there were available remedies she had failed to pursue. Notably, the Court rejected the notion that the claimant must request a transfer to other work or a leave of absence in these circumstances, where such requests would be futile.

Addressing the issue of when unhealthy work conditions constitute good cause for separation, the Board of Review held that a claimant who worked extended hours over her entire 2-month employment period (including 98 hours in 6 days) had good cause to quit, even where the claimant “was aware of what her schedule would be when she accepted the position with the employer.” BR-112118 (3/03/2011) (Key). The Board asserted that it was simply “not reasonable to require an employee to work under those conditions indefinitely until the employer increases its workforce.”

Employers may not defeat the payment of UI by reducing employee’s hours to the point where they must quit, Manias v. Director of the Div. of Employment Security, 388 Mass. 201, 445 N.E.2d 1068 (1983) (employer changed claimant’s schedule to eliminate most of her overtime), or laying claimant off and offering to reemploy the employee at substantially reduced wages. Graves v. Director of the Div. of Employment Security, 384 Mass. 766, 429 N.E.2d 705 (1981). The Board found a drastic decrease in the number of work hours assigned to a claimant to be good cause to quit. See BR-110763 (5/29/2010) (Key); BR-117158 (5/9/11) (Key). If an employer reduces an employee’s hours with the result that the employee would neither qualify for partial benefits under G.L. c. 151A, § 29(b) nor be able to earn a living wage, the employee may have an good cause for leaving work. AH c. 7, § 3B.6. The Board held that a claimant had good cause to quit his employment when the employer failed to inform the claimant that its business slowed down during the holiday season. Because the employer had told the claimant upon hire that he would have work for 40 hours per week and did not inform him that the substantial reduction in hours was only intended to be temporary, the claimant had good cause to leave the employer and file for benefits. BR-122769 (10/31/2012). (See Question 29.)

In a 2012 Board case, a claimant had resigned because his employer misclassified him as an independent contractor when, as a matter of law, he was an employee. The Board found good cause, attributable to the employer: upon being hired, the claimant had not been told he would be an independent contractor, he did not sign a contract indicting this status, and he learned of the misclassification only upon receiving his first paycheck and asking why no taxes had been deducted from it. The Board relied on Graves v. Director of the Div. of Employment Security, 384 Mass. 766, 768, 429 N.E.2d 705 (1981), analogizing the misclassification to significant, detrimental changes in the terms and conditions of employment that render a job unsuitable. BR-122163 (8/27/2012). (See Question 39, Misclassification.)

A Board of Review decision suggests thateither an indefinite or a permanent reduction in hours qualifies as good cause. In BR-110763 (3/28/2010) (Key), the Board determined that when an employer unilaterally reduced the claimant’s hours by half, creating a “drastic change in the conditions of the claimant’s employment,” the claimant had good cause attributable to her employer to resign. This was so even though the Board specifically determined as a finding of fact that “the employer expected that the reduction in hours would occur only until the economy improved.” Id. (emphasis added). Thus, the fact that the reduction in hours was time-limited did not mean that the claimant did not have good cause to resign based on the reduction in her hours.

Unfulfilled promises concerning pay or benefits can constitute good cause for leaving employment, if the promise was sufficiently definite. A remand was required in Svoboda v. Director of the Div. of Employment Security, 386 Mass. 1004, 436 N.E.2d 1218 (1982), for findings on whether the employer had failed to pay the claimant in accordance with the employment agreement, because such failure could have constituted good cause for leaving. See also AH c. 7, § 3B.5. In addition, reliance on a promise is good cause for leaving employment. The Board held there was good cause to leave where an employer’s promises (prior to hiring) of biannual raises were unfulfilled, even though claimant spoke with employer every six months about raises and did not receive a raise during claimant’s 4 years of employment. BR-124039 (10/31/12). The Board also found good cause for leaving employment where the employee relied upon the promise of a raise that never materialized, and the employee made reasonable efforts to address the problem with the employer. BR-709900 (4/8/14). Finally, where an employer promised an employee a raise and did not follow through with that promise, a Massachusetts District Court has held that the employee had good cause attributable to the employer to quit. Stowell v. Cicatiello, Director of the Div. of Unemployment Assistance, Orleans District Court, CA No. 1126 CV 0210 (2010). However, good cause for leaving does not exist where the claimant expected or requested a raise that was not unconditionally promised. See AH c. 7, § 2B.2.

The Court in Hunt v. Director of the Div. of Employment Security, 397 Mass. 46, 489 N.E.2d 696 (1986), also remanded for findings on this issue, where the employer hired the claimant as a temporary secretary with representations that the position would probably become permanent after six months, and permanency would have entitled the claimant to employee benefits. The claimant left after the employer extended her temporary status indefinitely.

If the employer changes a job so that it becomes significantly different from the job that the employee originally accepted, it may be considered “unsuitable.” If an employee’s job becomes unsuitable, then she has good cause to leave it. McDonald v. Director of the Div. of Employment Security, 396 Mass. 468, 487 N.E.2d 186 (1986); AH c. 7, § 3B.7. The burden of establishing unsuitability is on the claimant. (For a more detailed explanation of the “suitability” requirement, see Question 8.)

Where employees have a reasonable belief that the job is hazardous to their, this health also makes the job unsuitable and, therefore, constitutes good cause for leaving the job. Carney Hospital v. Director of the Div. of Employment Security, 382 Mass. 691, 414 N.E.2d 1007 (1981) (holding that the claimant need only prove she had a reasonable belief and did not have to establish that the work environment in fact harmed her); and a reasonable belief that the job is detrimental to the health of an employee because of pregnancy also makes the job unsuitable and, thus, constitutes good cause for leaving the job. Director of the Div. of Employment Security v. Fitzgerald, 382 Mass. 159, 414 N.E.2d 608 (1980).

The Board has ruled that no disqualification shall be imposed if the claimant quit their job with the employer to accept new permanent, full-time employment with another employer, and the claimant later became separated from the new employment for good cause attributable to the new employment unit. See BR- 0031 0031 53 (7/23/19).

Subjective Complaints and Unwarranted Disappointment in the Job Do Not Constitute Good Cause

A claimant’s “mere” disappointment with pay, working conditions, or management, where there was no justifiable expectation that conditions would be otherwise, is not good cause attributable to the employing unit. In Fanion v. Director of the Div. of Employment Security, 391 Mass. 848, 464 N.E.2d 69 (1984), the claimant accepted a change in position with a pay increase to take place after six months. After five months she learned the details of the increase, felt that the pay was not commensurate with the pressures of the job, quit, and was disqualified. See also LeBlanc v. Director of the Div. of Employment Security, 398 Mass. 1010, 501 N.E.2d 503 (1986). However, if the pressures of the job were such as to affect the claimants' health, their leaving may be for non-disqualifying urgent, compelling, and necessitous reasons. (See Questions 29–32.)

In Sohler v. Director of the Div. of Employment Security, 377 Mass. 785, 388 N.E.2d 299 (1979), a hospital employee was disqualified for voluntarily leaving without good cause where she testified to “subjective” complaints regarding mismanagement by the hospital that made her working conditions tense and frustrating, without proving that she was being required to perform work substantially different from that for which she was initially employed or that substandard conditions at the hospital subjected her to professional sanction, criminal or civil liability, or had an adverse effect on her health. See also Berk v. Director of the Div. of Employment Security, 387 Mass. 1003, 441 N.E.2d 531 (1982) (alleged mismanagement of a preschool); Wagstaff v. Director of the Div. of Employment Security, 322 Mass. 664, 79 N.E.2d 3 (1948) (denial affirmed where Board of Review found claimant left because of general dissatisfaction with the job and failure of employer to grant a pay raise).

Disappointment of a claimant, who is a substantial shareholder with the company’s financial performance (as with disappointment with pay or working conditions) does not constitute good cause for resignation. Abramowitz v. Director of the Div. of Employment Security, 390 Mass. 168, 454 N.E.2d 92 (1983).

Simple dissatisfaction with salary is not good cause for leaving attributable to the employer. Frazier v. Director of Dept. of Unemployment Assistance, 86 Mass. App. Ct. 1121 (2014).

However, “general job dissatisfaction” or “mere disappointment” must be distinguished from violations of law. For example, although a claimant’s opinion that “wages are too low” may fall under “general job dissatisfaction;” however, ifthat wage violates minimum wage and/or overtime laws, this constitutes good cause, even if claimants are unaware of their legal rights. Although stated by the SJC in the context of discharge, the principle is applicable here. See Kinch v. Director of the Div. of Employment Security, 24 Mass. App. Ct. 79, 506 N.E.2d 169 (1987) (claimant refused to work hours in violation of wage-and-hour laws, and finding that it is immaterial whether the employee is aware of or asserts the legal right, or its source, at the time of the discharge). To aid in the awareness of other legal rights that convert an improper determination of “general dissatisfaction” to a recognition that the separation was for reasons constituting a violation of legal rights, it is important to review other workplace rights. See Introduction; AH c. 8, Appendix.