27. Did the Claimant Take Reasonable Steps to Preserve Job?
Other than in sexual, racial, or other unreasonable harassment cases, discussed above, or cases where a claimant leaves due to the effects of domestic violence (Questions 30 and 33), an employee has a duty to take reasonable steps to preserve the employment relationship before resigning, unless such efforts would be futile. Where employees have failed to do this, the employees are said to have caused their own unemployment and her leaving is not considered involuntary, because there was, or may have been, an alternative. In Kowalski v. Dir. of the Div. of Emp't Sec., 391 Mass. 1005, 460 N.E.2d 1042 (1984), for example, the employee’s toleration of harassment by the employer and his failure to complain were legal grounds for denying employee UI after employee quit his job. The claimant has the burden of proving further efforts to preserve their employment would have been futile. However, where the claimant fails to notify the employer of their particular personal reason for leaving and where disclosure would not enable the employer to accommodate them, failure to notify does not necessarily defeat a claim. BR-115452-OP (4/4/12) (change in child care responsibilities); BR-0061 6971 29 (12/27/22) (Claimant eligible for benefits where quit because had been evicted from home and could not find affordable housing in the area).
An employee is expected to take such “reasonable means to preserve her employment” as to show her “desire and willingness to continue her employment.” Raytheon Co. v. Dir. of the Div. of Emp't Sec., 364 Mass. 593, 597-598, 307 N.E.2d 330 (1974); 430 CMR 4.04(5)(c)(3)(b);BR 0031 4295 21 (01/29/2020) (finding claimant left for urgent, compelling, and necessitous reasons and made reasonable efforts to preserve job when his vehicle broke down; although he did not ask to use company vehicle or transfer to closer worksite, he tried to rent a vehicle and carpool with another employee). However, it is not necessary that a claimant have had no other choice than to resign. Norfolk County Ret. Sys. v. Dir. of Dep’t of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 766 (2006); BR-0051 7664 00 (1/5/22) (Claimant made adequate job preservation efforts by requesting a reduction to part-time hours where medical condition prevented continuing full-time hours at that job).
In fact, although the general rule requires “reasonable steps” to preserve employment, there are situations in which “the circumstances indicate that such efforts would be futile or result in retaliation.” 430 CMR 4.04(5)(c)(3)(b); Guarino v. Dir. of the Div. of Emp't Sec., 393 Mass. 89, 94, 469 N.E. 2d 802, 805 (1984) (“We reject the notion that in order to be eligible for benefits an employee must request a transfer to other work or a leave of absence.”); BR-0045 5537 14 (3/30/21) (upholding benefits for claimant although he did not ask for a leave of absence, where the employer told him that he could not take additional time off); BR- 0051 9376 71 (6/28/21) (finding claimant who did not request transfer and did not ask to continue to work remotely took reasonable steps to preserve employment by sharing health concerns with supervisor and speaking with an environmental engineer conducting an air quality review); BR- 0056 9449 22 (9/29/21) (finding claimant took reasonable steps to preserve job by taking two-week leave and further steps would have been futile); BR-0072 2490 98(9/26/22) (Claimant made adequate job preservation efforts by requesting a change in the day shift, which would have resolved the childcare needs which ultimately led her to quit; under Guarino, claimant is not required to request a transfer or leave of absence).
Where a claimant has a reasonable belief that additional efforts to correct a problem would be futile, they have satisfied her burden to make reasonable efforts to preserve employment. See BR-0019 5811 74 (9/13/17) (Key) (finding good cause to resign where an employer repeatedly asked employee to work on Saturdays, even though the employer had granted Saturdays off as a reasonable accommodation); BR-0054 7971 19 (9/27/21) (finding claimant resigned with good cause and made reasonable effort to preserve job although he did not follow up further with employer, the Board inferred he reasonably believed there was nothing else he could do to return to full-time schedule); BR-0033 5561 29 (9/29/20) (claimant made reasonable job preservation efforts despite not sharing her concerns with human resources where coworkers told her reporting her concerns would not have resulted in changes to her employment situation, manager was acting unreasonably and clearly held a negative view of the claimant such that claimant reasonably believed the manager would not be receptive to her concerns; BR-0073 8613 02 (6/27/22) (Claimant who resigned due to stress and anxiety caused by employer requiring longer hours as a result of being short-staffed made reasonable job preservation efforts by requesting schedule change; while they did not specifically tell the employer they were resigning due to long hours, they could reasonably conclude that complaining about long hours would be futile where the employer was so short staffed). Where employees make concerns about changes to the terms and conditions of their job known to his immediate supervisor, who responds repeatedly that nothing will be done to address them, these efforts to preserve employment are sufficient. See BR-111647 (9/28/10) (Key).
Additionally, many low-wage workers often feel powerless in their jobs and do not feel they can ask for time off to resolve problems or a leave of absence, out of fear that they will be fired. Advocates need to explore carefully why a claimant did not take any further steps. For example, had the worker’s prior experience in raising issues result in being ignored or verbally harangued? Did the experience from observing other coworkers making similar requests lead the employee to fear of making such a request? Any of these, or other, reasons may provide an explanation as to why your client believed such attempts would have been futile.
Requesting Leave of Absence or Transfer to Another Position
Leaving work without first requesting a potentially available leave of absence or transfer is a frequent reason for denial of benefits. This requirement is more strictly applied in leavings due to urgent and compelling personal reasons, but can also arise in good-cause cases. (See Question 30.) In Dohoney v. Dir. of the Div. of Emp't Sec., 377 Mass. 333, 386 N.E.2d 10 (1979), for example, the claimant was disqualified after she left without applying for maternity leave or discussing with anyone her plans to return after childbirth. (See Question 32.)
However, the SJC has held, and the Board has recognized, that claimants do not have request a transfer or leave of absence to be considered to have made reasonable job preservation efforts. Guarino v. Dir. of the Div. of Emp’t Sec., 393 Mass. 89, 94, 469 N.E. 2d 802, 805 (1984) (“We reject the notion that in order to be eligible for benefits an employee must request a transfer to other work or a leave of absence.”); BR-0069 5698 65 (6/27/22) (Claimant made adequate job preservation efforts by requesting remote work or to taking their child to work to address their childcare concerns, neither of which the employer was able to accommodate. While the employer testified the claimant may have been eligible for a leave of absence of 1-2 months, claimants are not required to request a leave of absence to show they made reasonable job preservation efforts.) (See Question 30).
In Reissfelder v. Dir. of the Div. of Emp't Sec., 391 Mass. 1003, 460 N.E.2d 604 (1984), the claimant left work after unsuccessfully requesting a day off to go to court on a custody matter. She was disqualified because she failed to provide her supervisor with her reason for needing to go to court, but might have been given the time off, and preserved her job, had she done so.
These cases predate an expansion of employee right laws as well as new obligation imposed on employer to notify their employees of their rights and responsibilities under these laws. It is illegal for employers to discharge, penalize, or threaten to discharge or penalize an employees who have taken time off to testify in a criminal action if the employee is a victim or is subpoenaed to testify, if they have notified their employer prior to the day they are required to be in court. G.L. c. 268, § 14B. Similarly, other workplace laws provide protection against retaliation. See, e.g. the Earned Sick Time Law, G.L. c. 149, § 148 C and other laws listed in the Introduction: Note on Related Laws and Benefits
In some situations, transfer to another position will cure or diminish the employees' problem with their current position. For example, if the employee is physically unable to do one job, DUA will expect a requested request transfer to a less demanding position, if one is available. Again, if no such position is available, or the claimant can show the employer would not have granted the transfer request, no request should be required. And an employee should not be required to request transfer to a position with substantially lower pay or much less favorable conditions. In the case of a worker for a temporary agency, the Board reversed the decision denying benefits although the claimant did not affirmatively ask for a different assignment or a leave of absence. BR-0029 1423 93 (12/23/30). The Board noted the specific preservation requirements for workers of temp agencies under G.L. c. 151A, § 25(e), requiring workers to contact the temporary agency for reassignment. The Board held that the claimant’s request for light-duty work due to an injury, which her employer denied, satisfied her obligation to notify her employer of her ability to work. (See Question 38 Employees of Temporary Help Agencies.)
Notifying the Employer of Problem with the Employee’s Job
Claimants' leaving may be considered voluntary if they quits without first informing the employer of the problem with the job and giving the employer an opportunity to take steps to resolve it. For example, an employee whose childcare responsibilities change so that they conflict with the individual's hours of work should notify the employer of the problem to give the employer a chance to offer the employee different work hours. An employer might also be able to offer an injured employee a transfer to light duty. Similarly, a multistate employer might be able to offer an employee who must move out of state a transfer to a workplace in the new state. And the Board has held that even where a claimant has a reasonable workplace complaint and believes the employer is violating the law, they must show that he took reasonable efforts to resolve the matter or show that making such efforts would have been futile. See BR-0014 5343 84 (6/29/15) (Key). See BR-0014 5343 84 (6/29/15) (Key); see also BR-0033 5636 47 (5/22/20) (finding employer’s unreasonable conduct created reasonable workplace complaint when claimant was unfairly demoted due to health and age, and the Board reasonably concluded under these circumstances that she could not preserve her employment).
Although an employee must provide an opportunity for the employer to correct any problems, the Board of Review has held that it is not necessary for employees to take their complaint to the highest level possible in his employing unit in order to remain eligible for UI upon resigning, if doing so would have been futile. In BR-111647 (9/28/2010) (Key), the Board rejected the employer’s contention that the employee should have gone over the manager’s head to Human Resources in order to preserve his employment job, and held instead that the employee made legally sufficient efforts to preserve his job when he made his concerns known to his immediate supervisor, who responded repeatedly that nothing would be done to address them. The Board felt that the manager’s statements demonstrated the futility of further efforts by the employee. The Board cited New York & Mass. Motor Serv., Inc. v. Mass. Comm'n Against Discrimination, 401 Mass. 566, 517 N.E.2d 1270 (1988), which held that a claimant notifying his supervisor of the need for a different work schedule constituted adequate effort to preserve employment. In addition, the Board of Review held that a claimant who quit her job due to her employer’s withholding earned pay had good cause attributable to the employer to resign, and she was under no obligation to bring the violation to her employer’s attention prior to her resignation. BR-124223-A (1/30/13); see also BR-0032 6900 96 (3/20/2020) (finding claimant left involuntarily and made reasonable effort to preserve employment by taking ibuprofen, applying heating pads, and asking employer for a lift to assist with patients due to her back injury and employer refused)
Furthermore, a request for a leave of absence may also be futile because a leave would not ameliorate the situation. AH c. 7, § 1C.5. See also BR-108494-CTRM (5/8/2009) (holding that a pregnant employee took adequate steps to preserve her employment before resigning despite not having specifically requested Massachusetts Maternity Leave Act (MMLA) leave, relying in part on the fact the MMLA, which allows only eight weeks of maternity leave, could not have remedied her need for 17 weeks of leave). (The MMLA has been replaced in 2015 by the Massachusetts Parental Leave Act).