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31. Was There a Transportation Problem?

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.

A lack of transportation may be a compelling reason if caused by circumstances beyond the employees' control and they have no other means of getting to work. See Raytheon Co. v. Director of the Div. of Employment Security, 364 Mass. 593, 598, 307 N.E.2d 330 (1974). However, claimants may be disqualified if they fail to take reasonable steps to mitigate the transportation issue. For example, a disqualification was upheld where an employee’s car broke down but he declined to make temporary use of available public transportation or to ride with coworkers. Navarra v. Director of the Div. of Employment Security, 382 Mass. 684, 409 N.E.2d 1306 (1980). Had the employee claimed at the hearing that he had quit because his employer’s relocation increased his transportation burden, this might have constituted good cause.

The Board held that it was reasonable for a claimant to leave work when the claimant suffered from seizures, making travel to and from work dangerous, and the employer could not accommodate a closer work location. BR-124352 (11/26/12).

An employee who leaves work due to a move outside of a reasonable commuting distance is generally ineligible to receive UI benefits. However, if an employee moves outside of a reasonable commuting distance for “urgent, compelling and necessitous reasons” (i.e., domestic violence, medical reasons of self or spouse, loss of residence, accepting permanent housing, inability to find suitable housing following foreclosure, etc.), then the claimant is not disqualified for leaving work. Id.; Brightwell v. King, Deputy Director of the Div. of Employment & Training, Greenfield District Court, CA No. 9741 CV 539 (Hodos, J.) (3/2/98). If the employee leaves work because the employer moves beyond commuting distance from the employee’s home, then the leaving is involuntary. Id.

If an employee moves outside of a reasonable commuting distance to care for an ailing ex-spouse, this can also render a separation involuntary. The Board held that a claimant’s decision to move outside of commuting distance in order to care for his ill ex-wife made his separation involuntary. BR - 0002 2245 10 (2/21/14).

An employee’s separation is involuntary where it is proximately caused by incarceration (technically rendering employee unable to commute to work) on false allegations; this is because it cannot be said that the employee is at fault for bringing about incarceration where the charges are false. Proof that charges are false is necessary. BR-2033616 (2/4/2014). Note that conviction, as opposed to being held on charges, is a separate issue. G.L. c. 151A, § 25(e)(3).  (See Question 36.)

When an employee moved outside of a reasonable commuting distance in order to accept permanent housing after being approved for federal subsidized "Section 8" housing, the Board found she left for urgent, compelling, and necessitous reasons–she had been living in a homeless shelter with her two children prior to being approved for Section 8 housing. BR-123742 (10/31/2012).

Where a claimant’s home was foreclosed upon because, after her husband’s death, she was unable to pay the mortgage and the claimant could not find affordable housing close to her job that accommodated her large and elderly family dog, the Board concluded that the claimant’s decision to move out of state to live near her family, where she had been offered free trailer-home accommodations that would allow her to keep her dog, constituted an urgent, compelling, and necessitous reason for leaving her job. BR-116429 (9/9/2011).

Loss of License Required for Work

Where individuals cannot work, or get to and from work, because of the loss of a professional license or driver’s license and it is established that the loss is their fault, the employees are considered to have brought about their own separation and is considered to have left work voluntarily. Olmeda v. Director of the Div. of Employment Security, 394 Mass. 1002, 475 N.E.2d 1216 (1985) (conviction of driving while intoxicated); Rivard v. Director of the Div. of Employment Security, 387 Mass. 528, 441 N.E.2d 257 (1982). The same reasoning has been applied to the dismissal of a teacher who allowed her provisional educator’s certificate to expire. Burroni v. Director of the Div. of Employment Security, 85 Mass. App. Ct. 1127, 10 N.E.3d 671 (2014) (unpublished). But where the license loss is not the employee’s fault, the leaving is deemed involuntary. SRH § 1208(G). Carey v. Deputy Director of the Div. of Employment Security, Greenfield District Court, CA 0041-CV-0251 (6/4/01) (claimant, who was an admitted alcoholic, qualified for UI—notwithstanding his loss of license for failure to take a breathalyzer test—because any conduct arising out of his irresistible compulsion to drink was not “voluntary”). For a Board decision affirming that a person who loses their license for drunk driving, and who was a diagnosed and active alcoholic whose uncontrollable impulse to drink caused the arrest for drunk driving, is nonetheless eligible for UI benefits, (see Question 34.)