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27. Did the Claimant Take Reasonable Steps to Preserve Job?

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.

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 all 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. Director of the Div. of Employment Security, 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).

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. Director of the Div. of Employment Security, 364 Mass. 593, 597-598, 307 N.E.2d 330 (1974); 430 CMR 4.04(5)(c)(3)(b). However, it is not necessary that a claimant have had no other choice than to resign. Norfolk County Ret. Sys. v. Director of Dep’t of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 766 (2006). 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. Director of the Div. of Employment Security, 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.”) 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). And 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.

Review examiners take very seriously the claimants' obligation to take steps to preserve their job. Following are some cases on this point.

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. Director of the Div. of Employment Security, 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.)

In Reissfelder v. Director of the Div. of Employment Security, 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.

Note: These cases, while not overruled, predate an expansion of employee right laws as well as new obligation imposed on employer to notify their employees of their rights and responsibilites 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.

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).

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 and Mass. Motor Service, Inc. v. Mass. Commission 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).

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 8 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).