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. Dir. of the Div. of Emp't 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. Dir. of the Div. of Emp't Sec., 397 Mass. 433, 491 N.E.2d 1057 (1986); Santos v. Dir. of the Div. of Emp't Sec., 398 Mass. 471, 498 N.E.2d 118 (1986).

Individuals who notify their employer of an inability to continue work because of incarceration and who subsequently are not convicted of the offense charged are not subject to disqualification under §25(e)(3). AH c. 8, § 4; BR-110511 (12/2/09) (Key)(reversing disqualification on the grounds of unauthorized leave, where claimant who was incarcerated was not convicted). Similarly, the Board has held that a claimant who missed work because he was incarcerated on felony charges was involuntary separated for urgent, compelling and necessitous reasons where the claimant denied any wrongdoing and all the charges were eventually dismissed.  The Board found that where a claimant’s mother informed the employer about the incarceration, the claimant took reasonable steps to preserve his employment. The Board noted that where the separation arises solely from an arrest and/or incarceration, the ultimate disposition of the criminal charge is “a probative but not necessarily determinative factor."  BR-0015 9093 69 (9/2/16) (Key).

DUA draft AH (10/19) takes the position that a disqualification may be imposed even if the employer discharged the claimant not because of the conviction, but because the employer “needed the work to be done.” AH c. 8, § 4C. However, see BR-2033616 (2/4/14) (holding that 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). Moreover, wrongful arrests and/or convictions where the claimant cannot afford to make bail is another example of a non-disqualifying event. The presumption of innocence should protect the claimant from disqualification prior to conviction.

Claimants terminated for a DUI conviction resulting in loss of their driver’s license that interferes with commuting to work do not leave work either voluntarily or by constructive quit. The board held that where driving is not directly within the scope of the employee’s job, but the employer terminated the employee nonetheless, the claimant cannot be viewed as having created a “bar” to continued employment simply by losing an unrestricted driver’s license. Moreover, the separation is not a voluntary quit; rather, claimant was discharged under § 25(e)(2). See BR-2028524 (3/10/14).