Discharge cases are further broken down into “deliberate misconduct” and “rule violation” cases. In some cases both theories may be applicable and arguments should be developed along both theories when appropriate.

An employee who is discharged for misconduct cannot be disqualified under G.L. c. 151A, § 25(e)(2) [7] unless the behavior amounted to deliberate misconduct in willful disregard of the employing unit’s interest.

Deliberate misconduct and willful disregard are separate elements. The employer must establish each element, and the review examiner must make findings of fact on each. Smith v. Dir. of the Div. of Emp't Sec [8]., 376 Mass. 563, 382 N.E.2d 199 (1978). It is not enough simply to show that employees engaged in a wrongful act; employers must also show that claimants knew it was contrary to their employer’s interest.

The SJC has repeatedly reaffirmed that the burden of production and persuasion as to each element in a discharge case is on the employer. Torres v. [9] Dir. of the Div. of Emp't Sec [9]., 387 Mass. 776, 780 n. 3, 443 N.E.2d 1297, 1330, n. 3 (1982) (discussion of employer’s burden in deliberate misconduct case); Still v. Comm'r of the Dep’t of Emp't & Training [10], 423 Mass. 805, 809, 672 N.E.2d 105 (1996) (“[i]n accordance with the directives of § 74 [11] [of G.L. c. 151A, directing that the unemployment statute shall be liberally construed in aid of its purpose, which is to lighten the burden on the unemployed worker and his family], the grounds for disqualification in § 25(a)(2) [7] are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.”).

The burden of production and persuasion is not met where the employer fails to attend a hearing. Review examiners should not assume the role of the employer in those instances because they are charged with impartiality under state and federal law and the dictates of due process.  G.L. c. 151A, §39(b) [12]; 42 U.S.C. § 503(3)(a) [13]; Dicerbo v. Nordberg, No. 93-5947B, 1998 WL 34644 (Mass. Super. 1998) (affirming need for review examiners to be independent and impartial decisionmakers).  Review examiners far too often assume the role of the absent employer and go beyond establishing that the case is a discharge rather than a quit.  Where the review examiner improperly relies on the absent employer’s documents submitted to DUA (thereby depriving the claimant of the right of crossexamination of adverse evidence) as well as cross-examines a claimant without a foundational prima facie case having been established by the employer, an advocate should prepare the claimant to address these issues while also making an objection for the record if an appeal is needed.

The examiner must make findings as to the claimant’s state of mind at the time of the alleged misconduct to determine whether the conduct was both “deliberate” and in “willful disregard” of the employer’s interest. Jones v. Dir. of the Div. of Employment Security [14], 392 Mass. 148, 465 N.E.2d 245 (1984); Wedgewood v. Dir. of the Div. of Emp't Sec [15]., 25 Mass. App. Ct. 30, 514 N.E.2d 680 (1987); This point was restated in South Central Rehabilitative Resources, Inc. v. Comm'r of the Div. of Emp't & Training [16], 55 Mass. App. Ct. 180, 770 N.E.2d 17 (2002).

When a discharged worker seeks UI benefits, the issue is not whether the employer was justified in discharging the claimant but whether the Legislature intended that UI benefits should be denied in the circumstances. The fact that an employer had good cause for discharge under a collective bargaining agreement or statutory scheme will not necessarily mean that the employee can be disqualified for UI benefits. Dir. of the Div. of Emp't Sec. v. Mattapoisett [17], 1983 Mass. App. Div. 131, aff’d, 392 Mass. 858, 467 N.E.2d 1363 (1984) (holding that although teacher was discharged for disruptive, belligerent behavior under “conduct unbecoming” language of G.L. c. 71, § 42 [18], this finding did not preclude the agency from determining that the teacher’s discharge was not attributable to deliberate misconduct in willful disregard of the town’s interest). Similarly, notwithstanding the gravity of error where a claimant failed to check a patient’s IV catheter, where the error was caused by negligence and was not an intentional act, the claimant is entitled to UI benefits.  BR-106310 [19] (7/16/08) (Key).

Deliberate misconduct is the intentional disregard of standards of behavior that the employer has a right to expect. BR-106310 [20](7/16/08) (Key) (claimant’s negligent failure to check a catheter does not result in disqualification, notwithstanding the gravity of the error). Employers may establish these standards by rule, policy, warnings, direct order, or otherwise. Furthermore, the employer bears the burden of proving by substantial and credible evidence that the conduct was deliberate.  Hogan v. Dir. of the Div. of Unemployment Assistance, Boston Municipal Court, CA 1001 CV 2825 (2010) (holding plaintiff eligible for benefits where he was terminated for falling asleep in a company car after his shift had ended); BR-0033 4158 64 (5/28/20) (finding employer failed to meet burden in establishing claimant engaged in alleged misconduct where the only evidence of alleged misconduct was HR manager’s testimony and the HR manager did not witness the alleged incident firsthand).

Mere unsatisfactory performance is not misconduct, unless the employer proves that the claimant deliberately failed to perform their work to the employer’s satisfaction. Trustees of Deerfield Academy v. Dir. of the Div. of Emp't Sec [21]., 382 Mass. 26, 413 N.E.2d 731 (1980); Reavey v. Dir. of the Div. of Emp't Sec [22]., 377 Mass. 913, 387 N.E.2d 581 (1979); BR-19419 (2/20/14). Employee negligence is not deliberate misconduct. Garfield v. Dir. of the Div. of Emp't Sec [23]., 377 Mass. 94, 97, 384 N.E.2d 642 (1979); BR-125322 (7/25/14); BR-106310 [19] (7/16/08). See also BR-0019 6517 85 (3/21/17) (Key); BR-0008 9856 93 (1/9/14) (Key); BR-110349 (6/6/10) (Key); BR-109435 (3/15/10) (Key).

Conduct that is generally unsatisfactory does not constitute misconduct. Nantucket Cottage Hosp. v. Dir. of the Div. of Emp't Sec [24]., 388 Mass. 1006, 446 N.E.2d 75 (1983) (poor personal hygiene, inability to accept criticism, and profane language); BR-109435 (3/15/2010), available at https://www.mass.gov/doc/br-109435/ [25] (unsatisfactory performance not deliberate misconduct where workplace errors may have resulted from allergies to mold growing in workplace); BR-123168-A (11/30/12) (profane language toward a customer is not deliberate misconduct where the claimant emotionally reacted to a customer’s racist comments about claimant’s national origin/ethnicity).

Absence or tardiness for compelling reasons is not misconduct, but courts and the Board have held that failure to notify the employer in accordance with company rules is. Hoye v. Dir. of the Div. of Emp't Sec [26]., 394 Mass. 411, 475 N.E.2d 1218 (1985) (employee did not call in absence to appropriate persons, despite many prior warnings); Moore v. Dir. of the Div. of Emp't Sec [27]., 390 Mass. 1004, 457 N.E.2d 279 (1983) (employee persisted in reporting to work at 9:30 when starting time was 8:30); BR 0030 2225 88 (8/30/19)(Key) (where the employer changed the claimant’s shift from 2 p.m. to 6 a.m., although the claimant received multiple warnings for her tardiness, she was not disqualified due to her sincere efforts to get to work on time); BR-1951632 [28] (11/1/13)(arriving late to work is not deliberate misconduct where the claimant set an alarm clock but slept through it; the setting of the alarm demonstrates an intent to arrive at work on time); BR 0032 6619 01 (5/29/20) (Claimant erroneously told by coworker that employer did not expect him to work a shift did not engage in misconduct. A claimant who believes, erroneously or not, that he was not expected to work his shift cannot be engaged in deliberate misconduct for failure to report for work).

Employees who avail themselves of a legal right cannot thereby commit misconduct. See Kinch v. Dir. of the Div. of Emp't Sec [29]., 24 Mass. App. Ct. 79, 506 N.E.2d 169 (1987) (claimant refused to work hours in violation of wage-and-hour laws). It is immaterial whether the employee is aware of or asserts the legal right, or its source, at the time of the discharge. Advocates should therefore assess whether the employer’s attendance and notification rules comply with Massachusetts’ Earned Sick Time law and regulations, M.G.L. c. 149, § 148C.; 940 CMR 33.00. For example, the Earned Sick Time law limits when an employer can require medical documentation to support an employee’s absence, and provides employees at least seven days from the time they took Earned Sick Time to submit such documentation to the employer. 940 CMR 33.06.

Similarly, an employee charged with a crime who avails themself of the “admission to sufficient facts” procedure permitted by the rules of criminal procedure does not thereby commit misconduct. See Wardell v. Dir. of the Div. of Emp't Se [30]c., 397 Mass. 433, 491 N.E.2d 1057 (1986) (junior college teacher charged with possession of marijuana with intent to distribute). Nor is an admission to sufficient facts a disqualifying “conviction” under §25(e)(3) [7]. (See Question 36 [31].)

An adjudication of the claimed right by a court or another agency, however, may have a preclusive effect. Lewis v. Dir. of the Div. of Emp't Sec., 379 Mass. 918, 400 N.E.2d 264 (1980) (an adverse arbitration decision under the National Labor Relations Act foreclosed claimant’s assertion that the Act protected her wearing a “Strike—G.D.” jacket to work at General Dynamics plant where the claimant and the employer were parties in both the NLRB and UI proceedings).

UI benefits cannot be denied on the basis of misconduct where the claimant is alleged to have violated a rule that was not uniformly enforced. Encore Images, Inc. v. Dir. of the Div. of Unemployment Assistance [32], 76 Mass. App. Ct., 1109 (2010) (unreported) (employee fired for vulgarity could not be denied UI benefits for misconduct because employees regularly used profanity at work and a different employee had received multiple warnings before discharge); Wininger v. Dir. of the Div. of Unemployment Assistance [33], 80 Mass. App. Ct. 1116 (2011) (unreported) (employee who was fired for swearing was not disqualified from UI for deliberate misconduct in willful disregard of employer’s interests because swearing was directed at supervisor, not clients or outsiders, was in private, was commonplace at the office; there was no rule against swearing; the employer had never warned or disciplined the claimant in any manner in the past; the employer had never disciplined any employee for similar conduct in the past; and the employer gave the employee no opportunity to apologize). A claimant who muttered a profanity regarding a supervisor out of frustration and momentary lapse of judgment, but not actually to the supervisor, did not deliberately commit misconduct. BR-2026705 (5/27/14).

The main issue in misconduct cases is not usually whether misconduct was committed but whether the claimant willfully disregarded the employer’s interest. This determination requires inquiry into the employee’s state of mind at the time the wrongful act was committed; the employee must have known that the act was contrary to the employer’s interest or expectations. This is sometimes framed as a question of intent: Did the employee intend to disregard the employer’s interest?

In establishing state of mind, the history of the employment relationship is important. As a general matter, an employee cannot be found to have the requisite state of mind if the employer had not made the employee aware of its expectations through rules, policies, warnings, instructions, and so forth. If, however, the conduct at issue is clearly wrongful, such as theft or falsification of records, a claimant may be found to have acted in willful disregard even in the absence of explicit instructions not to engage in the conduct. Jorgenson v. Dir. of the Div. of Emp't Sec [34]., 394 Mass. 800, 477 N.E.2d 1005 (1985) (falsifying pay records); Babize v. Dir. of the Div. of Emp't Sec [35]., 394 Mass. 806, 477 N.E.2d 1009 (1985) (same). Where an allegation of theft or misappropriation of funds is the basis for discharge, the employer must provide “substantial and credible evidence or proof” that the theft or misappropriation occurred and that the claimant was involved in the theft. BR-124433 [36] (7/18/14).

Where obviously intentional conduct is present, the court will not require specific state‑of‑mind findings. Grise v. Dir. of the Div. of Emp't Sec [37]., 393 Mass. 271, 471 N.E.2d 71 (1984) (claimant left at beginning of shift after learning he would be working with supervisor with whom he had personality conflict); Sharon v. Dir. of the Div. of Emp't Sec [38]., 390 Mass. 376, 455 N.E.2d 1214 (1983) (claimant publicly insulted supervisor, then refused to apologize publicly).

A claimant’s open “bad attitude” may facilitate a finding of willful disregard. Lycurgus v. Dir. of the Div. of Emp't Se [39]c., 391 Mass. 623, 462 N.E.2d 326 (1984) (claimant discharged for tardiness after warnings where he had stated to supervisor that he was not required to be at work until 9:00 a.m. “on the dot”).

An employee who reasonably believes that their disobedience of an order is required to further a more important purpose of the employer is not acting in willful disregard of the employer’s interest. See Jones v. Dir. of the Div. of Emp't Sec [14]., 392 Mass. 148, 465 N.E.2d 245 (1984) (employee who continued to work on deadline, although ordered not to do the work, not disqualified although he had previous warning for insubordination). Similarly, a worker who is discharged for refusing to follow an order that requires them to violate state or federal law is not disqualified. AH c. 8, § 1F. 12.

Even if the employee’s judgment is erroneous, good-faith errors are not willful disregard of the employer’s interest. Garfield v. Dir. of the Div. of Emp't Sec [23], 377 Mass. 94, 384 N.E.2d 642 (1979) (rearranging the store schedule without notifying district manager); BR-1994619 [40] (1/17/14) (where the claimant mistakenly believed his commute by public transportation would not be affected by a holiday bus schedule).

Personnel policies known to the employee are probative evidence regarding the claimant’s state of mind. An employee’s reliance on these policies, where they may contradict other statements of the employer, can be used to show a lack of willful disregard. Goodridge v. Dir. of the Div. of Emp't Sec [41]., 375 Mass. 434, 377 N.E.2d 927 (1978) (employee left to file discrimination charge with Equal Employment Opportunity Commission where he thought personnel handbook gave permission to do so; employer claimed he left without permission).

Mitigating Circumstances

The presence of mitigating circumstances should be explored and presented in both misconduct and rule violation cases. If employees' misconduct is attributable to mitigating circumstances, then they have not acted in willful disregard. In the case of an employee fired for being late after a prior warning, for example, there is no willful disregard if the lateness was due to an extraordinary circumstance, such as sudden illness of a family member. Similarly, falling asleep on the job is not disqualifying if occasioned by mitigating factors. Wedgewood v. Dir. of the Div. of Emp't Sec [15]., 25 Mass. App. Ct. 30, 514 N.E.2d 680 (1987); Lengieza v. King,  Deputy Dir. of Emp't & Training, Chicopee District Court, CA 9920 CV 0421 (1999)(same). In Wedgewood, the Appeals Court held that the employee's unwillingness to discuss his personal problems with his supervisor, to take a leave of absence, to accept counseling, or to institute a union complaint were not sufficient bases for the denial of UI after the employee was discharged for sleeping on the job, when personal problems caused him to be unusually fatigued. The Court noted that although the employee's reluctance to discuss his personal problems or to accept help from the employer or union did not serve his long-term interests, such reluctance did not constitute deliberate misconduct in willful disregard of his employer's interest under G.L. c. 151A, § 25(e)(2) [7].

The breakdown of the claimant’s car plus lack of cell phone with which to contact employer are mitigating circumstances for tardiness, since they show that there was no intent to engage in misconduct. BR-122720 [42] (7/18/14). The Board held that a claimant's failure to clean two assigned rooms because of the elate linen delivery was due to mitigating circumstances. BR-0031 6005 36 (2/7/20). 

The Board found that the combination of a claimant’s homelessness and the last-minute refusal of the expected ride to work from her friend only 20 minutes before the claimant was scheduled to leave for work, making her frantic and causing her to forget to call the supervisor to report that she would be late to work, constituted mitigating circumstances of her failure to call in. BR-124425 [42] (7/24/14). Similarly, the emotional trauma of the recent death of the mother of the claimant’s fiancé, which affected the claimant’s ability to read her schedule properly and thus arrive at work on time, was found to be a mitigating factor beyond the control of the claimant. BR-124136 [43] (7/25/14).

In one matter, a bus driver suffering from an enlarged prostate, having been stuck in unusually heavy traffic, urinated publicly to avoid wetting himself. The Board of Review found that circumstances sufficiently mitigated the claimant’s actions. BR-1178833 [44] (11/4/13).

The Board found a mitigating factor beyond claimant’s control where a claimant’s doctor—in order to treat emergency patients—rescheduled an appointment relating to the claimant’s returning to work after medical leave until after the employer’s deadline for claimant’s return. BR-125549 [45] (11/7/13).

Any discharge due to circumstances resulting from domestic violence, including the need to address the physical, psychological, and legal effects of domestic violence, is not disqualifying; for example, a claimant discharged for violating the attendance policy due to incidents of domestic violence or due their need to seek treatment or protection. G.L. c. 151A, § 25 (e) [7], ¶ 7; AH c. 6, § 3; BR 0031 4269 81 (2/19/20) (finding absence cannot be considered deliberate misconduct where claimant’s tardiness and absences were caused by domestic violent relationship constituting mitigating circumstances) (See Question 33 [47] for discussion of domestic violence in separation cases).

In 1992, G.L. c. 151A, § 25(e) [7] was amended to add a new disqualification ground. In addition to deliberate misconduct, an employee who is discharged for a “knowing violation of a reasonable and uniformly enforced rule or policy” is disqualified unless the violation is “a result of the employee’s incompetence.” The SJC’s decision in Still v. Comm'r of the Dept. of Emp't and Training [10], 423 Mass. 805, 672 N.E.2d 105 (1996) is the lead case interpreting this ground for disqualification.

According to the G.L. c. 151A, § 25(e), ¶ 2 [7], an employee may be disqualified under this provision if the employer establishes that:

• the rule or policy existed;
• it was effectively communicated to the employee, i.e., in a language and mannor understood by the claimant (see AH c. 8, § 1D);
• it was reasonable;
• it was uniformly enforced, both as to the claimant and other employees;
• the claimant knowingly violated the rule or policy; and
• the rule violation was not the result of the claimant’s incompetence.

The employer has the burden of proving these elements by introducing “substantial and credible” evidence on each element. For example, an employee discharged for failing a drug test administered before he was hired could not be disqualified because the employer’s work rule applied only to drug usage during or affecting the employment. O’Connor v. Comm'r of the Dep’t of Emp't & Training [48], 422 Mass. 1007, 664 N.E.2d 441 (1996).

Moreover, the Board held that more than a positive workplace marijuana test is required for a claimant to be determined ineligible for UI. The Board pointed out that the marijuana decriminalization statute, G.L. c. 94C, § 32L [49], states that possession of one ounce or less of marijuana shall not provide a basis to deny UI benefits. BR - 0012004801-07 [50] (08/04/2014).

However, the Appeals Court has held that an employer who fails to meet its burden under the “knowing rule violation” can still meet its burden of showing deliberate misconduct. Gupta v. Deputy Dir. of the Div. of Emp't & Training [51], 62 Mass. App. Ct. 579, 818 N.E.2d 217 (2004) (an employee’s rude remark to a customer constituted disqualifying deliberate misconduct, even though the employer originally justified the firing on the grounds of a knowing violation of a work rule and had failed to present substantial evidence to support its firing for this reason).

 

According to the AH c. 8, §§ 1B and 1C.1, the following elements must be satisfied for a knowing violation:

In [10]Still v. Comm'r of the Dept. of Emp't & Training [10], 423 Mass. 805, 672 N.E.2d 105 (1996), the employer discharged the claimant for swearing at a patient who had provoked her. The Commissioner argued that because the claimant had admitted that she had prior knowledge of the employer’s policy that patients were to be free from mental and physical abuse and that she understood that the consequences of violating this policy included discharge, this was sufficient to establish that she had “knowingly violated the policy.”

The SJC disagreed. It found that, in the context of G.L. c. 151A, § 25(e)(2) [7], “‘knowing’ implies some degree of intent, and that a discharged employee is not disqualified unless it can be shown that the employee, at the time of the act, was consciously aware that the act being committed was a violation of an employer’s reasonable rule or policy.” 423 Mass. at 813 [10], 672 N.E. at 112; accord, Franclemont v. Comm'r of the Dep’t of Emp't & Training [52], 42 Mass. App. Ct. 267, 676 N.E.2d 1147 (1997).

The Still Court explicitly found that “Still’s testimony . . . supports a conclusion that she lacked the state of mind required to find a ‘knowing’ violation.” 423 Mass. at 814 [10]. The Court further found that although “mitigating circumstances alone will not negate a showing of intent or thereby excuse a ‘knowing violation,’ [they] may, however, serve as some indication of an employee’s state of mind, and may aid the fact finder in determining whether a ‘knowing violation’ has occurred.” 423 Mass. at 815, 672 N.E.2d at 112. Furthermore, Still points out that “[t]he presence of mitigating circumstances may also be applicable in determining whether the violated rule was reasonable as applied.” 423 Mass. at 815 [10], n.11; 672 N.E.2d at 113, n. 11. In line with Still, the Board held that an employer did not meet its burden of establishing an employee’s knowing violation of an employee handbook rule where the handbook was in English, the claimant could not read English, and the employer did not have the handbook translated for the employee. BR-123671 (2/26/13).

AH c. 8, § 1C sets out a detailed analytical framework for rule-violation cases. While the term “state of mind” is not used, it is clear from the emphasis on “conscious awareness”—both of the act and of the rule violation—that state of mind is a critical element.

 

The rule or policy must be reasonable in light of an employer’s interest—i.e., there must be a clear relationship between the rule or policy and the employer’s stake in it, and it must be one that could be expected to be adhered to in the normal course of events. A rule that conflicts with or violates any legal right of the employee is per se unreasonable. AH c 8, § 1C.2.a. The reasonableness of a rule must be evaluated in light of a claimant’s protection under the Americans with Disabilities Act, 42 U.S.C. § 12101 [53], and other state and federal laws protecting workplace rights. AH c. 8, § 1C.2a and c. 8 Appendix.

The application of the rule must also be reasonable. Thus, a rule is not reasonably applied where there are circumstances of an “unusual nature.” AH c. 8, § 1D. Examples of such circumstances include the following:

• serious weather‑related problems
• unavoidable transportation problems
• contradictory supervisory rules
• family emergencies, such as illness, that may lead to a violation of absence or tardiness rules. To the extent that extensive absences are covered by the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 [54]et seq [54]. (FMLA), the Massachusetts Parental Leave Act, G.L. c. 149, § 105D [55], the Massachusetts Domestic Violence Leave Act, G.L. c. 149, § 52E [56]; the Small Necessities Leave Act, c. 149 § 52D [57]; and the Earned Sick Time Law, G.L. c. 149, § 148C [58], they are generally not disqualifying for UI purposes as long as the claimant made a reasonable effort to preserve employment unless the attempt would have been futile. AH c. 7, § 4B.
• rules that regulate an employee’s conduct outside the workplace
• adherence to rules that could result in injury to the health or safety of an individual
• compliance with rules that would violate federal or state law, public policy, or ethical or professional standards
• inability to comply with the rule due to circumstances resulting from domestic violence. G.L. c. 151A, § 25(e), ¶2; [3] AH c. 6, § 3
• any other objectively verifiable circumstances of an unusual or urgent and compelling nature, with which the claimant could not reasonably be expected to comply

Where a claimant refused to sign a memo concerning the employer’s time card because she believed there was an error regarding her time worked on her paycheck, the Board of Review ruled the employer discharged the claimant, but the discharge was not for knowing violation of a reasonably and uniformly enforced rule or policy; the policy, though facially benign, was “implemented in an unreasonable way,” making the discharge unreasonable. BR - 0013 6849 13 [59] (6/8/15). Other instances where the Board has found a rule unreasonable include where a “no contact” rule was overbroad, BR-0020 9459 20 (12/27/17) (Key); a submission to a Fitness for Duty examination was based solely on the use of an over-the-counter hemp cream to relieve chronic knee pain, BR-0023 4482 89 (9/27/18) (Key); and a highly experienced nurse was ordered not to discuss with coworkers her discipline for objecting to a protocol concerning a highly contagious resident, BR-0015 7381 34 (12/23/15) (Key).

The employer bears the burden of demonstrating that it has uniformly enforced the work rule or policy—i.e., the employer must show that it treats all similarly situated employees subject to the rule or policy in a similar manner when they violate a rule or policy. The employee’s status within a progressive discipline system must also be considered. AH §§ 1C.b. 1D.

In New England Wooden Ware Corp. v. Comm'r of the Dep’t of Emp't & Training [60], 61 Mass. App. Ct. 532, 811 N.E.2d 1042 (2004), the Appeals Court provided the first guidance on the question of uniform enforcement of a work rule. The Court found that the claimant who was fired for violating the employer’s written policy on unexcused absences, was entitled to UI where the policy included undefined terms and was unevenly applied in practice. The Court considered the employer’s failure to apply the policy uniformly to the claimant as evidence of non-uniform enforcement, even if it was to the claimant’s benefit. “Failure to enforce a policy uniformly, whether to the employee’s benefit or detriment, still influences the employee’s belief regarding the consequences of his actions.” 61 Mass. App. Ct. at 535 [60]. See also, Gold Medal Bakery, Inc. v. Comm'r of the Div. of Unemployment Assistance [61], 74 Mass. App. Ct. 1105, 903 N.E.2d 1145 (2009) (unreported) (holding that where an employer could not demonstrate that its attendance policies were uniformly enforced, an employee discharged for calling in sick in violation of attendance policies was eligible for UI). BR-0002 1180 82 (2/18/04) (Key) (finding that by waiting until the claimant’s fifth attendance violation following a final warning of termination, the employer led the claimant to believe that his behavior was condoned, such that the claimant lacked the requisite state of mind to be disqualified).

A statutory exception to a finding of disqualification under G.L. c. 151A, § 25(e)(2) [3] is that “the violation is not shown to be as a result of the employee’s incompetence,” a proviso that modifies both prongs (deliberate violation and rule violation) of the discharge provisions. See G.L. c. 151A, § 25 (e) [62]; Trustees of Deerfield Academy, v. Dir. of the Div. of Emp't Sec., 382 Mass. 26, 33(1980) (findings of fact that employee was “an unsatisfactory employee” were sufficient for a conclusion that the claimant was not fired for disqualifying misconduct). (Quotations in original).

To the extent that this places the burden of proof on the claimant, it may be inconsistent with the statutory scheme. To establish incompetence, a claimant can show that he was incapable of adhering to the rule due to a lack of ability. If the claimant’s work is not satisfactory to the employer but there is no deliberate lack of effort by the claimant, incompetence is similarly established. In some circumstances, a claimant’s incompetence may be due to a temporary factor (such as stress attributable to a divorce or a family illness, causing loss of concentration), even though the claimant has the inherent ability to perform the job. AH c. 8, § 1B.3.

When an employing unit suspends a claimant from work as discipline for breaking established rules and regulations, the claimant may be disqualified from receiving UI for the period of suspension, but in no case may this suspension period exceed 10 weeks. G.L. c. 151A, § 25(f) [7]; 430 CMR 4.04(4) [63]. The disqualification occurs only if the employer establishes that the claimant violated a rule or regulation that the employer published or established in its customary manner, the suspension was for a fixed period of time, and the employee has the right to return to the job at the end of the suspension period if work is available.

Public employees who are suspended following indictment are disqualified from receiving UI during the period of the suspension, even if it is for an indefinite period. See G.L. c. 151A, § 22 [64]; c. 30, § 59 [65] (applies to officers and employees of the Commonwealth); G.L. c. 268A, § 25 [66] (applies to county, municipal, and district officers).

Disciplinary vs. Investigative Suspension

A “disciplinary suspension” under § 25(f) [7] is distinct from an “investigatory suspension,” which, if followed by termination, should be analyzed under G.L. c. 151A, § 25(e)(2) [7] as discharge attributable to the employee’s actions. See BR-110769 (1/11/2011) (where claimant was placed on indefinite investigatory suspension and then terminated after the employer concluded that the claimant had engaged in the suspected misconduct, this suspension cannot be analyzed as a disciplinary suspension but as a § 25(e)(2) [7] discharge that occurred at the date the employee was put on investigatory suspension pending discharge). As a result of the Board’s decision, DUA took the position that an indefinite suspension is considered to be a discharge as of the date that the suspension began. However, a subsequent decision of the Board caused DUA to reverse course. See BR-1843191 (9/11/14) (claimant who was placed on a disciplinary suspension could not be disqualified under G.L. c. 151A, § 25(f) [7], because the suspension was indefinite; since the claimant remained on suspension at the time he filed an unemployment claim, his separation was properly analyzed under G.L. c. 151A, § 29 [67] i.e., whether or not he was in total unemployment), regardless of the fact that he was subsequently discharged). Accordingly, DUA now finds that if a claimant is under an indefinite suspension, the claimant is eligible for UI. If the claimant is suspended for a workplace rule or regulation violation, the 10 week suspension can be imposed only if the suspension is for a fixed period of time and the claimant has the right to return to work as long as work is available. However, if the claimant is indefinitely suspended, adjudicated under §25(f) and later permanently separated, the entitlement to UI benefits must be investigated under §25(e) and the claim reopened for the week in which the claimant was formally separated. See UIPP # 2014.06, Revision to Policy for Adjudication of Indefinite Suspensions (9/26/14); AH c. 8, § 2. See BR-0028 9572 66 (1/30/20) (finding disqualification of benefits for first 10 weeks of benefits improper because employer failed to show that the claimant’s suspension was for a fixed period of time and that he had a right to return at the end of the suspension).

Other Grounds for Suspensions

In addition to rules violations, DUA will inquire whether a claimant has been suspended due to conviction; drugs, or alcohol; indictment while in public office; loss of license; safety violation; accident or equipment damage; theft; misappropriation; falsification; unsatisfactory attendance, work performance, or qualifications, or behavioral issues.

DUA typically asks the following questions to ascertain UI eligibility in discharge cases. These represent a small sample of questions posed to claimants in English-only questionnaires. A claimant must respond either through UI Online or by mail. As these questions are often very confusing and the responses could determine initial UI eligibility, advocates should assist claimants in providing the most accurate and clear responses.

1.   Why was the employee discharged?

2.   Does the employer have a rule or policy regarding this offense?

IF RULE VIOLATION:

3.   Did the claimant know of the company’s rule or policy?

4.   How did the claimant know of the company’s rule?

5.   Was the rule uniformly enforced? How were incidents like this handled in the past?

6.   Was the rule reasonable?

7.   Was the application of the rule reasonable?

8.   Was the rule violation a result of the claimant’s incompetence?

IF NO RULE VIOLATION:

9.   Was the conduct deliberate? Was there an intentional act of omission by the claimant?

10. What was the employer’s expectation?

11. Did the claimant know of the expectation and, if so, how did the claimant know?

12. Was there any extenuating circumstance that was the cause of the behavior?

WARNINGS:

13. Were any warnings issued? If so: When? How many? By whom? What was the content? Was a copy of the warning given in writing, or was the warning verbal?

14. Did the employer provide the warning in a language the claimant could understand?

15. Were the actions previously condoned?

16. Was the conduct so outrageous that no warnings were necessary?

Employees who quit their job voluntarily and “without good cause attributable to the employing unit or its agents” are subject to disqualification pursuant to G.L. c. 151A, § 25(e)(1) [7]. Where claimant are determined to have quit or resigned, the burden of proving eligibility is on the claimant to establish that they left either involuntarily or for good cause attributable to the employer, such that the claimant is unemployed through no fault of their own. Sohler v. Dir. of the Div. of Emp't Sec [68]., 377 Mass. 785, 788 n.1, 388 N.E.2d 299, 301 n. 1 (1979).

In most cases, an employee must make all reasonable efforts to maintain the employment relationship before quitting the job, or else the claimant risks that the quit will be treated as voluntary regardless of the underlying reasons. Harassment cases present a notable exception. (See Questions 26 [69] and 27 [70].) The agency position is not uniform on whether a person who is subjected to other violations of law in the workplace must first attempt to resolve the problem before quitting. Arguably, an employer is charged with knowledge of wage-and-hour laws and so should have been aware of the violation. Lee v. O’Leary, Dir. of the Div. of Unemployment Assistance [71], Quincy District Court Docket No. 0556 CV 2136, (Coven, J.) (11/1/06) (finding that claimant had good cause for quitting where payroll policy resulting in last payment of wages violated Massachusetts wage laws).

A separation that is not "voluntary" will not subject a claimant to disqualification under G.L. c. 151A § 25(e)(1) [7]. A separation is considered voluntary if an employee simply chooses to leave employment. A separation is not voluntary if it was:

• coerced or required by the employer;
• caused by circumstances beyond the claimant's control; or
• of an "urgent, compelling and necessitous" nature.

G.L. c. 151A, § 25(e) [7]. These factors are more fully discussed in the following sections.

 

Did the Employee Quit in Reasonable Anticipation of Being Fired or Otherwise Discharged from Employment?

A separation is not voluntary if the employer imposed it. An employee who is given the choice of being fired or resigning and resigns, should be treated as fired. AH c.6, § 1A.1. An employee who leaves work because of a reasonable belief that a firing is imminent will not be disqualified under G.L. c. 151A, § 25(e)(1) [7].

In both Malone‑Campagna v. Dir. of the Div. of Emp't Sec [72]., 391 Mass. 399, 461 N.E.2d 818 (1984) (employees who had collectively resigned claimed at the hearing that they did so because they believed they were about to be discharged for refusing to conform to employer’s new, unlawful policies), and Scannevin v. Dir. of the Div. of Emp't Sec [6]., 396 Mass. 1010, 487 N.E.2d 203 (1986) (employee believed he was about to be fired and so failed to submit medical document required to preserve his job), remands were required for findings as to whether the claimants’ beliefs that they were about to be fired were reasonable.

In Gabovitch v. Jurczak [32], 76 Mass. App. Ct. 1109, 920 N.E.2d 88 (2010) (unpublished), the Appeals Court affirmed a lower court ruling that the employee reasonably believed that her job was coming to an end due to the dissolution of the employing partnership and that she left work for good cause attributable to the employer and was therefore eligible for UI benefits.

If the employer gives the claimant the alternative of quitting or being discharged and the claimant chooses to resign, they the claimant will not be disqualified under G.L. c. 151A, § 25(e)(1) [7], but if DUA determines that the intended discharge would have been for misconduct or a rule violation, the claimant may be disqualified under § 25(e)(2) [7].

Although it is not an unemployment case, practitioners should be aware of the SJC’s decision in Upton v. JWP Businessland [73], 425 Mass. 756, 682 N.E.2d 1357 (1997), holding that it was not a violation of public policy to terminate an employee at will who, due to her responsibilities as a single parent of a young child, could not work the additional overtime hours that her employer required. The court did note, however, that the Legislature has directed that UI benefits should be available where domestic responsibilities limit a person’s availability to work. 425 Mass. at 756 [73]. Therefore, if the employee were discharged, she should not be disqualified under §25(e)(2) [7], and if she resigned in anticipation of discharge, she should not be disqualified under §25(e)(1) [7].

Where an employer does not allow a quitting claimant to work during the course of the two-week notice given by the claimant, the claimant is not disqualified from benefits from the date of notice to the date of quitting, even if the separation would have been voluntary and disqualifying after that two-week notice period. BR-703301 [74] (6/20/14).

A voluntary leaving is not disqualifying under  UI law: 1) if the individual leaves her job in good faith to accept a new job on a permanent basis and loses the new job for good cause attributable to the employer; or 2) if the individual leaves because the terms of a pension or retirement program requires the individual’s retirement from that job.  G.L. c. 151A, §25(e) [7], ¶3.  

Retirement

In certain cases, an employee who has some control over her date of retirement may still qualify for UI benefits. Thus, in O’Reilly v. Dir. of the Div. of Emp't Sec [75]., 377 Mass. 840, 388 N.E.2d 1181 (1979), an employee who accepted his employer’s proposal to accelerate his retirement by six months was not disqualified from receiving UI since job separation was inevitable. However, an employee will not be deemed eligible if the employee opts for early retirement without reasonable belief that mandatory retirement is inevitable. Klockson v. Dir. of the Div. of Emp't Sec [76]., 385 Mass. 1007, 432 N.E.2d 704 (1982) (finding claimant’s belief that the employer would soon have discharged him unreasonable where the employer had no mandatory retirement policy, several employees older than the 65-year-old claimant worked for the employer, and the claimant had more than 10 years’ seniority).

Employees who reasonably believes they will be laid off will not be disqualified for retiring before the layoff is announced. In White v. Dir. of the Div. of Emp't Sec [77]., 382 Mass. 596, 416 N.E.2d 962 (1981), the claimant accepted a retirement incentive because he had heard rumors of an impending layoff and had limited seniority. He believed that if he did not retire, he would be laid off soon after his retirement date. The Court ruled that, if his belief was reasonable, his leaving was not voluntary. In a subsequent case, the Court held that if the employer created uncertainty about whether the individual would be laid off as part of a reduction in force, then accepting a voluntary severance package does not disqualify one for UI. State Street Bank v. Deputy Dir. of the Div. of Emp't & Training [78], et al., 66 Mass. App. Ct. 1, 10–12, 845 N.E.2d 395 (2006); Charrette v. Comm'r of the Div. of Unemployment Assistance, 72 Mass.App.Ct. 1114, 892 N.E.2d 837 (2008) (unpublished decision); BR - 0014 7739 42 (9/30/15) (concluding as a matter of law that “because the employer substantially hindered the claimant’s ability to determine the likelihood that he would be involuntarily separated from his employment if he did not accept the employer’s separation package, his decision to leave was for good cause”); BR-0032 1539 27 (3/21/20) (the Board applying the State Street doctrine found good cause attributable to the employer and claimant eligible for benefits where the employer offered an early retirement package and strongly suggested there would be a workforce reduction).

Layoffs and Voluntary Severance Packages

Generally, an employee who is laid off involuntarily is eligible to receive UI. This is true even when an employer’s layoff scheme grants limited discretion to its employees to decide which workers will be laid off. For example, where an employer announces a layoff plan that contains voluntary as well as potentially involuntary components and thereby creates an environment in which an employee is forced to speculate on the likelihood of an involuntary termination, such employee has “good cause attributable to the employer” to leave work and take a voluntary severance package. See State Street Bank & Trust Co. v. Deputy Dir. of the Div. of Emp't and Training, et al [78]., 66 Mass. App. Ct. 1, 845 N.E.2d 395 (2006); Curtis v. Comm'r of the Div. of Unemployment Assistance [79], 68 Mass. App. Ct. 516 (2007); Charrette v. Comm'r of the Div. of Unemployment Assistance, 72 Mass. App. Ct. 1114, 892 N.E.2d 837 (2008) (unpublished opinion); Connolly v. Dir. of Div. of Unemployment Assistance [80], 460 Mass. 24, 948 N.E.2d 1218 (2011).

When given a choice by management of remaining at work or accepting a layoff due to a general reduction in the workforce, a claimant who agrees to be laid off is not subject to disqualification. AH c.6, § 1A. This is because it is the employer who decides to lay off staff, and the employer can accept or reject the claimant’s offer. Morillo v. Dir. of the Div. of Emp't Sec [81]., 394 Mass. 765, 477 N.E.2d 412 (1985). However, Morillo is limited to circumstances in which the employer has announced that layoffs will occur and does not provide a financial incentive for employees to choose in lieu of layoff. Connolly v. Dir. of the Div. of Unemployment Assistance [82], 460 Mass. 24, 28, 948 N.E.2d 1218 (2011) (claimant who accepted severance package was not eligible for UI where she was not compelled to apply for the termination, did not believe her job was in jeopardy, and left in part for personal reasons). In so holding, the Connolly Court found that there was no analytical difference in early retirement and incentive-based termination packages, and that it was not dispositive that the employer had made the final decision in accepting the claimant’s resignation.

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 Dir. of the Dept. of Emp't & Training [83], 54 Mass. App. Ct. 405, 413, 765 N.E.2d 810, 817 (2002). G.L. c. 151A, § 25(e), ¶ 5 [7], 430 CMR 4.04(5)(c) [63]. (See Question 26 [69].)

Reasonable disciplinary action is not good cause for leaving. Leone v. Dir. of the Div. of Emp't Sec [84]., 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. Dir. of the Div. of Emp't Sec [85]., 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 [86] (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 [87], 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).). When an employer promised a claimant 40 hours of work per week during the hiring process, but reduced her to 30 hours per week, the Board held that the claimant had good cause attributable to her employer to resign. BR-0031 3314 98 (02/11/2020). Further, she demonstrated reasonable efforts to preserve her job by raising her concerns with her employer and accepting all extra work possible. See BR- 0033 3986 08 (6/29/20) (finding claimant had good cause to resign when employer unilaterally demoted him and reduced his pay; claimant established futility of efforts to preserve job where his supervisor was the business owner and there was no other authority to seek help).

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 [88] (5/20/11) (Key) A claimant has good cause to quit where an employer demands that the claimant violate safety regulations. BR-125248 [89] (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 [90] (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. Dir. of the Div. of Unemployment Assistance [91], 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. Dir. of the Div. of Emp't Sec [92]., 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 held that a claimant who worked extended hours over her entire two-month employment period (including 98 hours in six 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 [93] (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. Dir. of the Div. of Emp't Sec., [94] 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. Dir. of the Div. of Emp't Sec [95]., 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 [96] (5/29/2010) (Key); BR-117158 [97] (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) [98] 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 [99].)

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. Dir. of the Div. of Emp't Sec [95]., 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 [100], Misclassification.)

A Board of Review decision suggests that either an indefinite or a permanent reduction in hours qualifies as good cause. In BR-110763 [96] (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. Dir. of the Div. of Emp't Sec [101]., 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 four 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 [102] (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, Dir. 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. Dir. of the Div. of Emp't Sec [103]., 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. Dir. of the Div. of Emp't Se [104]c., 396 Mass. 468, 487 N.E.2d 186 (1986); AH c. 7, § 3B.7. The burden of establishing unsuitability is on the claimant. See BR-0032 6800 99 (5/18/20) (holding good cause attributable to employer where employer substantially cut claimant’s hours after he gave employer notice rendering work unsuitable); BR-0037 1191 32 (8/30/21) (claimant who worked full-time had good cause to leave job where he was offered a choice to continue at his hourly rate of $30 per hour on a per diem basis or accept a reduction to $25 per hour while keeping full-time hours). (For a more detailed explanation of the “suitability” requirement, see Question 8 [105].)

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 Hosp. v. Dir. of the Div. of Emp't Sec [106]., 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. Dir. of the Div. of Emp't Sec. v. Fitzgerald [107], 382 Mass. 159, 414 N.E.2d 608 (1980). The Board found a claimant whose continuous use of worn out or malfunctioning equipment created an unsafe work environment had good cause to quit. BR- 0044 5897 17 (1/28/21). The Board noted her valid workplace complaint and determined her repeated attempts to raise the safety concerns constituted a reasonable attempt to correct the situation. 

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. Dir. of the Div. of Emp't Sec [108]., 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. Dir. of the Div. of Emp't Sec [109]., 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 [99].)

In Sohler v. Dir. of the Div. of Emp't Sec [68]., 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. Dir. of the Div. of Emp't Sec [110]., 387 Mass. 1003, 441 N.E.2d 531 (1982) (alleged mismanagement of a preschool); Wagstaff v. Dir. of the Div. of Emp't Sec [111]., 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. Dir. of the Div. of Emp't Sec [112]., 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 [113], 86 Mass. App. Ct. 1121 (2014).

A claimant who leaves work due to reasonable concerns regarding unsafe working conditions or inadequate lighting, heat, ventilation, or sanitation can have good cause for quitting. AH c. 7, § 3B.4. For example, a claimant leaves work for good cause when working conditions result in exposure to a risk of injury or danger to health beyond the normal hazards of the job. However, the claimant should attempt to resolve the hazardous condition or faulty equipment by making a complaint to the employer prior to leaving work. Id. Where the employer does not permit an employee to do so, the claimant has good cause to resign. BR-110509 [114] (9/28/10).

In a District Court decision, the Court reversed the denial of UI, stating that where an employer’s smoking policy at the nursing home where the claimant worked as a nurse’s aide subjected her to unwanted second-hand smoke, this exposure constituted good cause for her leaving attributable to the employer. Perez v. Cicatiello [115], Boston Municipal Court, CA 2009-01-CV-4076 (Forde, J.) (6/14/11).

The Board of Review held that preliminary OSHA determinations of safety deficiencies in the workplace were sufficient to support the reasonableness of a claimant’s belief that she was working in unsafe conditions and therefore constituted good cause attributable to the employer. BR-119197 [90] (2/23/12) (Key).

Specific language in G.L. c. 151A, § 25(e), ¶6 [7] precludes disqualification if the separation was caused by sexual, racial, or other unreasonable harassment but only where the employer, its supervisory personnel, or its agent knew or should have known about the harassment.

DUA’s regulations governing harassment in the workplace as it bears on UI eligibility are helpful to advocacy in these cases.  The regulations define what constitutes racial, sexual, or other unreasonable harassment. 430 CMR 4.04(5)(a) and (b) [116]. Further, the regulations provide that in cases of alleged racial, sexual, or other unreasonable harassment, where the employer, its agents, or other supervisory employees knew or should have known about the harassment, the employee need not take reasonable, or even any, steps to resolve the situation before leaving. 430 CMR 4.04(5)(c)¶¶ [63] 1 and 2. See Tri-County Youth Programs [83], [83]Inc. v. Acting Deputy Dir. of the Div. of Emp't & Training [83], 54 Mass. App. Ct. 405, 413, 765 N.E.2d 810, 817 (2002).

To determine whether a claimant’s reason for leaving work is due to harassment, DUA looks to the totality of the circumstances surrounding the claimant’s separation, such as the nature of the harassment and the context in which the alleged harassing incident occurred. 430 CMR 4.04(5)(d) [63]. The Board has recognized, for example, that what the employer characterized a discharge as what it called “disruptive behavior” may in fact be reasonable reactions to ongoing harassment, and therefore did not support a disqualification. BR-00332 9964 35 (May 20, 2020). 

An employer is not deemed to have knowledge of harassment by a coworker or a customer, and an employee is required to report it unless he can prove that the employer knew or should have known of this harassment.

For harassment cases other than racial, sexual, or other unreasonable harassment, the claimant must notify the employer, unless knowledge is imputed, and may leave if the employer fails to take prompt and effective remedial action. 430 CMR 4.04(5)(c)¶ 3 [63].

In one Board case where failure to bring the matter to the employer’s attention did not defeat the claim, the Board found that the sales manager, who had harassed the claimant by belittling her and repeatedly yelling at her, was a longtime friend of the general manager and therefore it would have been futile for the claimant to report the problem. BR-122882-A (8/30/12).

The Board has recognized retaliation (flowing in one matter from a claimant’s reporting his legitimate concerns about management’s altering his time records) as a form of unreasonable harassment qualifying the claimant for UI benefits. Following the claimant’s complaint, management targeted him for truck inspections that were not in accordance with the employer’s policy and went to the claimant's home and took photographs of his property while the claimants was on medical leave, and the employer did not present evidence to show that other employees were treated similarly to the claimant. BR-121433-CTRM (10/31/2012). 

 

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 [117] and 33 [47]), 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. Dir. of the Div. of Emp't Sec [118]., 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 [119] (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. Dir. of the Div. of Emp't Sec [120]., 364 Mass. 593, 597-598, 307 N.E.2d 330 (1974); 430 CMR 4.04(5)(c)(3)(b [63]); 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 [121]., 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) [63]; Guarino v. Dir. of the Div. of Emp't Sec [92]., 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).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. A claimant need only show reasonable efforts to preserve their job, not that they had no choice but to resign). 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 [117].) In Dohoney v. Dir. of the Div. of Emp't Sec [122]., 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 [123].)

In Reissfelder v. Dir. of the Div. of Emp't Sec [124]., 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 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 [125]. Similarly, other workplace laws provide protection against retaliation. See, e.g. the Earned Sick Time Law, G.L. c. 149, § 148 C [58] 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) [126], 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. [127])

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 [128] (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 [129], 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). 

DUA typically asks the following questions to ascertain UI eligibility in voluntary quit cases. These questions are a small sample of questions posed to claimants in English-only questionnaires. A claimant must respond either through UI Online or by answering these questions in the mail. As these questions are often very confusing and the responses could determine initial UI eligibility, advocates should assist claimants in providing the most accurate and clear responses.

1. Why did you leave your job?
2. What were the events leading up to your leaving the job?
3. What were the terms of your employment?
4. What was your regular work?
5. What could the employer have done to remedy any problems you had?
6. What did you do to try and work out a solution before leaving? Do you have any proof of what you did?
7. Did you talk to anyone at work about the problem?
8. If you didn’t talk to anyone before leaving, why not?
9. Did you have a union, and if so, did you exhaust the union grievance procedure?
10. Did you know about the employer’s policies regarding leave of absence? 
11. What did you tell the employer was the reason for your leaving your job?
12. Did you have to leave your job because of union or retirement rules?

Claimants who leave work due to “urgent, compelling, and necessitous circumstances” leave involuntarily and are eligible to receive UI benefits under G.L. c. 151A § 25(e) [7], ¶3; AH c. 7, § 4. There are no hard-and-fast rules regarding what constitutes urgent, compelling and necessitous circumstances for leaving a job; such determinations are largely driven by the facts of the individual case. AH c. 7, § 1C.4. “The nature of the circumstances in each case, the strength and the effect of the compulsive pressure of external and objective forces must be evaluated, and if they are sufficiently potent, they become relevant and controlling factors.”  Reep v. Comm'r of the Dept. of Emp't & Training [130], 412 Mass. 845, 848, 593 N.E. 2d 1297 (1992). However, a review examiner would typically find that certain general categories meet the definition and the courts have held that a wide variety of personal circumstances have been recognized as constituting “urgent, compelling and necessitous” reasons.

For example, an employee who must leave work due to illness or the need for treatment (including treatment for alcoholism), to escape domestic violence, or due to family responsibilities, such as to care for an ill family member or because childcare arrangements unexpectedly collapse, may do so for compelling personal reasons and, if so, should not be disqualified. See Norfolk Cnty Retirement Sys. v. Dir. of the Dept. of Labor & Workforce Dev [121]., 66 Mass. App. Ct. 759, 765, 850 N.E. 2d 1079 (2006)(collecting cases); Raytheon Co. v. Dir. of the Div. of Emp't Sec [120]., 364 Mass. 593, 307 N.E.2d 330 (1974); BR-0027 2835 41 (1/14/19) BR-1576384 [131] (5/15/14). In another case, an employer‑imposed schedule change interfered with the claimant’s childcare responsibilities, and the court remanded the case to consider whether the claimant’s domestic responsibilities meant that his leaving work was involuntary. Zukoski v. Dir. of the Div. of Emp't Sec [132]., 390 Mass. 1009, 459 N.E.2d 467 (1984). In such situations, however, the employee will be expected to explore other, less drastic alternatives before quitting. The most common expectation is that the claimant will request a leave of absence, unless it would be futile to do so. (See Question 30 [117].) The Board held that the claimant’s decision to leave work in order to care for her ailing grandmother, who lived in New Jersey, was involuntary. It made no difference that her grandmother later moved to Massachusetts or that her health eventually improved because the standard is whether claimant acted reasonably at the time of her resignation. The claimant also tried without success to preserve her job before quitting, including requesting a leave of absence in lieu of resigning. BR - 0002 4578 04 [133] (12/31/2013).The Board held that a claimant who was pregnant who could not perform heavy lifting had an urgent, compelling, and necessitous reason for quitting when her employer’s only offer to accommodate her medical necessity was to reduce her hours, without providing any relief from lifting heavy items. BR - 0014 5404 50 [134] (8/17/15).

Childcare needs and domestic responsibilities also can render a separation involuntary. Manias v. Dir. of the Div. of Emp't Sec [94]., 388 Mass. 201, 204, 445 N.E. 2d 1068 (1983).  In a case where a claimant left her job after learning that she would not be able to change her hours to make them compatible with her childcare needs, the Board held that her separation was involuntary. BR - 0002 4383 77 [135] (12/3/13).

Not being able to afford childcare can also make leave involuntary. The Board also held that a claimant’s need to leave work just before her scheduled return from maternity leave was involuntary because she could not afford childcare services as a working, single parent. BR - 0002 1624 00 [136] (6/19/14). And the Adjudication Handbook recognizes that continued employment may be impossible where severe documented financial hardship (e.g., rent past due notices, eviction notices, bank statements, medical bills) causes a claimant to move to a new location beyond commuting distance, making continued employment impossible. AH c. 7, § 4B.8.

The Board of Review has held that a claimant’s leaving was involuntary where the claimant’s mental health condition rendered him unable not only to perform his job but also to make any efforts to preserve his job. BR-110773 [137] (1/27/2010) (Key). A claimant who resigned because he reasonably believed that his job had a negative impact on his health and he had already taken a leave of absence, left for urgent, compelling reasons.  BR-95712-FE (3/16/2005). The Board of Review held that a claimant suffering from severe mental disorders who believed his mental condition would lead to discharge left involuntarily and his illness prevented compliance with the obligation to preserve employment.  BR - 0014 6325 82 1/715) [138].

Similarly, the Board has held that a claimant’s separation was involuntary where the claimant’s mental state was impaired at the time of resignation because her pain medication rendered her unable to think rationally about quitting. BR-671940 [139] (2/13/2014). The Board noted that even if claimant was aware of the obligation to try and preserve employment, she was not able to do so at the time due to significant impairment. Id.  The Board held that a claimant with mental disorders had urgent reasons to quit mid-shift when she experienced a severe panic attack and she lacked the capacity to make efforts to preserve her job at the time she walked out. BR-0015 9657 00 [140] (5/17/16).

Additionally, the Board held that a claimant’s leaving was involuntary where the claimant was vomiting blood from an ulcer and the doctor advised a less stressful job, so long as claimant reasonably believed the condition was caused by work. The Board noted that verification from the doctor was not necessary. BR-1233626 (12/27/12). The Board also held that a claimant’s stress about her husband’s major illness was sufficient to establish that the claimant left work at a funeral home for urgent, compelling, and necessitous reasons.  BR - 0015 8288 32 [141] (12/23/15). 

Note 1: Leaving for urgent, compelling, necessitous reasons may prompt an inquiry as to whether the claimant is able to work and available for work. (See Question 8 [105].)

Note 2: If the employee’s reason for leaving was an urgent, compelling, and necessitous one, the employer’s experience rating is not charged and the UI payments are made from the UI Solvency Fund, unless the employer is self-insured. G.L. c. 151A, § 14(d)(3) [142].

Note 3: Advocates should review AH, c. 7, § 4B for other examples of involuntary leaving that are not disqualifying, such as moving with a family member to escape the threat of domestic or gang violence or to avoid homelessness, or where a claimant under the age of 18 moves with their parents. Although a longstanding exception detailed in DUA's service representative's handbook has included moving with a spouse serving in the armed services, an Appeals Court decision erroneously noted (based on a mistaken fact submitted by DUA Counsel) that this provision of the handbook had been repealed. DiGiulio v. Director of Dep’t of Unemployment Assistance, 94 Mass. App. Ct. 292, n. 4, 113 N.E. 3d 850 (2018).  The DUA Legal Department has confirmed that this provision has not been repealed. See AH c. 7, §4B.6.

Other common reasons of an “urgent, compelling, and necessitous” nature are described in the following sections.

To establish that the claimant left work for “urgent, compelling and necessitous circumstances,” the employee must have first made reasonable attempts to find a way to maintain the employment relationship (see Question 27 [70]), generally by requesting a leave of absence. This requirement will be excused if the employees can establish that:

• they reasonably believed leaves of absence were not available or that their request for a leave of absence would have been denied; or
• a leave of absence would not have resolved the underlying problem.

Review examiners treat this requirement very seriously and do not lightly excuse a failure to request a leave. It should be noted that this leave of absence requirement is not statutory. Indeed, the SJC has “reject[ed] the notion that in order to be eligible for benefits an employee must request a transfer to other work or a leave of absence.” Guarino v. Dir. of Division of Emp't Sec., 393 Mass. 89, 94 (1984).  [92]

Claimants are not required to request a leave if they did not know a leave might be available, or if the employer would not grant a leave. See AH c. 7, § 1C.5. The Board held that while a claimant may have inaccurately concluded that she had already exhausted her available leave, this belief was reasonable given her severe mental and physical conditions at the time.  BR - 0014 5696 18 [143] (7/16/15).  The Board of Review held that a claimant acted reasonably when she did not request leave to deal with childcare issues because management inaccurately told her that her leave  under a collective bargaining agreement had been exhausted. BR-0014 3119 43 (12/9/15) [144]. A claimant may not be disqualified for failure to take a leave where they would not qualify for a leave of absence or could not afford to take an unpaid leave of absence. BR-0032 9811 51 (6/5/20). Nor should claimants be disqualified if the leave options available to them would be inadequate to address the reasons needed for the leave. BR-0010 9677 48 (5/15/14) (“because claimant’s relocation to care for her father was “open-ended and there was no indication that her father’s condition would improve within a reasonable timeframe, it would have been futile for the claimant to have requested a leave of absence.”); BR-0032 0714 77 (3/11/20) (it was “not unreasonable for the claimant to determine that a leave of absence without pay that could extend from six months to one year would not be a feasible option for her.”); BR-115452-OP (4/4/12) (employer had no leave policy, and in any case “a leave of absence would not have solved the claimant’s childcare issues.”). 

The Board held that claimant’s need to stop working to allow a doctor to adjust depression medication (after being denied FMLA leave due to ineligibility and without employer’s providing an option for non-FMLA leave) was involuntary as a matter of law, citing Reep v. Comm’r of Dep't of Emp't & Training [130], 412 Mass. 845, 593 N.E.2d 1297 (1991); Guarino v. Dir. of the Div. of Emp't Se [92]c., 393 Mass. 89, 469 N.E.2d 802 (1984). BR - 0002 1459 34 [145] (1/10/2014). The Board of Review held that a claimant who informed her employer that her work was physically overwhelming and who had a mental breakdown because of her inability to adequately perform the work, separated involuntarily under G.L. c. 151A, § 25(e) [7]. BR - 0016 3569 76 [146] (10/19/15).

The Board also held that a claimant’s decision not to request further unpaid leave after his FMLA leave expired was reasonable on the basis of futility (if granted—which was unlikely—he still would not have recovered sufficiently to do the work he had been doing prior to injury and the employer would not have any light-duty positions available), which rendered his separation involuntary as a matter of law. BR - 0002 2340 17 [147] (6/25/2014).

When an employee returns from an approved leave of absence only to be notified by their employer that they have already been replaced, the reason for separation from employment for UI purposes is “discharge.” See BR - 0002 1899 64 (1/15/2014). 

Note: Ensure that the claimant would actually have been eligible for a leave under the applicable federal or state law and that the employer followed the requisite posting and notification requirements. Claimants who are on a leave of absence granted at their request will be considered “not in unemployment” and therefore ineligible for UI benefits during the period of their leave.

In Lebeau v. Comm'r of the Dep’t of Emp't & Training [148], 422 Mass. 533, 664 N.E.2d 21 (1996), the claimant requested a leave of absence and then sought to rescind the leave, and the employer exercised its discretion (under a contract) not to rescind. The court held that the claimant was not involuntarily unemployed during the period of the leave and therefore was not entitled to benefits.

Domestic Violence and Sexual Harassment Exceptions

The requirement that a claimant take reasonable steps to resolve problems with the employer prior to leaving does not apply when the claimant leaves work due to domestic violence, G.L. c. 151A, § 25(e) [7], or where there are allegations of work-related sexual harassment. See Tri-County Youth Programs, Inc. v. Acting Deputy Dir. of the Div. of Emp't & Training [83], 54 Mass. App. Ct. 405, 765 N.E.2d 810 (2002). 

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. Dir. of the Div. of Emp't Sec [120]., 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. Dir. of the Div. of Emp't Sec [149]., 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. See BR 0031 4295 21 (01/29/2020) (finding claimant who lived 85 miles from place of employment made reasonable efforts to preserve job after 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). 

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 Dir. of the Div. of Emp't & 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 [150] (2/4/2014). Note that conviction, as opposed to being held on charges, is a separate issue. G.L. c. 151A, § 25(e)(3) [7].  (See Question 36 [151].)

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. Dir. of the Div. of Emp't Sec [152]., 394 Mass. 1002, 475 N.E.2d 1216 (1985) (conviction of driving while intoxicated); Rivard v. Dir. of the Div. of Emp't Sec [153]., 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. Dir. of the Div. of Emp't Sec [154]., 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 [46].) 

 

Pregnancy and Parental Leave 

Pregnancy or childbirth can be a compelling personal reason, but the claimant’s decision to leave her employment must be reasonable, and she must exhaust all reasonable means to preserve her employment. Dir. of the Div. of Emp't Sec. v. Fitzgerald [155], 382 Mass. 159, 414 N.E.2d 608 (1988). In Fitzgerald, the claimant, who prevailed in obtaining UI benefits, was a welder whose obstetrician advised her in mid-pregnancy to discontinue her employment. She sought a transfer to clerical work, but the company physician did not support her request for transfer. After obtaining outside opinions, she declined to continue welding and was put on maternity leave. While on maternity leave, she continued to seek clerical work and was considered involuntarily “unemployed” despite her ongoing relationship with the employer.

In Dohoney v. Dir. of the Div. of Emp't Sec [122]., 377 Mass. 333, 386 N.E.2d 10 (1979), the claimant was disqualified after she left without applying for maternity leave or discussing with anyone her plans to return after childbirth.

According to A [156]H c. 7 § 1.C.5, claimants' statements that they did not know that a leave was available or that attempts to request a leave would be futile is a valid reason for not requesting a leave of absence. And, despite the decision in Dohoney, it is not absolutely necessary for a claimant leaving employment due to pregnancy to specifically apply for maternity leave (under federal or state law governing leave due to pregnancy or the employer’s policy) in order to remain eligible for UI. In BR-108494-CTRM (5/8/2009), the Board found the claimant took sufficient steps to preserve her employment before leaving her position due to her pregnancy. Although the claimant did not apply for FMLA or parental leave, she did generally inquire about a leave for pregnancy, and the director did not offer her parental leave or any other options for maintaining her employment; thus, the Board concluded it was reasonable for the claimant to believe that further efforts to preserve her employment would have been futile.

An employee who has properly applied for parental leave and whom the employer does not reinstate at the end of the leave is eligible for UI benefits; the employer‑employee relationship is deemed to continue during the leave. W. Electric Co. v. Dir. of the Div. of Emp't Sec [157]., 340 Mass. 190, 163 N.E.2d 154 (1960). However, arguably, if the claimant can show that the termination occurred when the leave began, that date would be the start of the claimant's benefit year and eligibility for UI would start as soon as the claimant was available for work. An extended unpaid leave may affect the claimants' benefit credit, and thus their monetary eligibility and benefit rate. G.L. c. 151A, § 24(a) [158].

The Board held a claimant’s separation to be involuntary when her employer required her to decide, months before giving birth, that she would need to quit because she believed that she would not be able to afford childcare after giving birth. Though circumstances changed following her prospective notice of resignation such that affording childcare became feasible, these circumstances were neither planned nor were they reasonably foreseeable when she was forced to make the decision. BR - 0002 1442 38 [159] (12/30/2013) (Key).

Pregnancy Discrimination, the Massachusetts Parental Leave Act, the Massachusetts Pregnant Workers Fairness Act, and the Paid Family and Medical Leave Law.

Under the Massachusetts Parental Leave Act, G.L. c. 149 §105(d) [55], employees who have completed their probationary period or who have worked full-time for the employer for three months is entitled to eight weeks of parental leave for the purpose of the birth or adoption of a child. This leave is generally unpaid although the employer may elect to pay the employee during the leave. It also applies regardless of the gender identity of the employee.

EEOC guidelines do not allow for disparate treatment of pregnant employees and the leave policy must be uniformly applied. See EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, June 25, 2015, available at https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm [160]. Employers are also not allowed to terminate an employee for requesting restricted or light duties if the reason is due to pregnancy and this denial does not match similar situations in cases of injury or disability. See Young v. UPS [161], 135 S. Ct. 1338 (2015) (holding that evidence of an employer policy or practice of providing light duty to a large percentage of non-pregnant employees while failing to provide light duty to a large percentage of pregnant workers, although not facially discriminatory, might establish that the policy or practice significantly burdens pregnant employees). Similarly, employers may not adopt policies that limit or preclude pregnant employees from performing specific jobs or tasks. See International Union, UAW v. Johnson Controls, Inc. [162], 499 U.S. 187 (1991); See also Spees v. James Marine, Inc. [163], 617 F.3d 380, 392-94 (6th Cir. 2010) (finding genuine issue of material fact as to whether employer unlawfully transferred pregnant welder to tool room because of perceived risks of welding while pregnant).

Under the Massachusetts Pregnant Workers Fairness Act, St. 2017, c. 54 [164], amending G.L. c. 151, § 4, employers may not deny reasonable accommodation for an employee's pregnancy or any condition relating to pregnancy including lactation or the need to express milk for a nursing child. Unlawful activities under this act include taking adverse employment actions including the denial of employment opportunities and requiring an employee to take a leave if another reasonable accommodation can be provided.

Under An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, St. 2018, c. 121, adding G.L. c. 175M  all family and medical leaves are job protected and employees are protected against retaliation starting January 1, 2021 for family leave for the birth or adoption or foster care placement of a child, for needs arising out of a covered individual’s family member’s active duty service, and for care of a family member of a covered service member.  Benefits and protections for other covered individuals for care of a family member with a serious illness begin on July 1, 2021.

Illness or Injury of the Employee, Employee’s Spouse, or Family Member

The health condition of an employee can constitute a compelling reason for leaving. Where an employee leaves work out of necessity due to a health problem, such a leaving constitutes “urgent, compelling and necessitous” circumstances under § 25(e)(1) [7] of the law and the claimant should not be disqualified. For example, in Carney Hosp. v. Dir. of the Div. of Emp't Sec [106]., 382 Mass. 691, 414 N.E.2d 1007 (1981), the court found that the claimant was not disqualified where the claimant had a reasonable belief that a recurrent severe skin infection was caused by the work environment. In another case, a remand was required to enable the claimant (who was without representation at her initial hearing) to procure medical evidence of her elevated blood pressure and recurrent headaches, which she had referred to in her letter of resignation. Hunt v. Dir. of the Div. of Emp't Sec [103]., 397 Mass. 46, 489 N.E.2d 696 (1986). A claimant need not prove that the employment caused the ailment; they need only prove that it was reasonable to believe that a causal connection existed between the employment and the ailment. See Carney Hospital, 382 Mass. at 691.

For example, the Board of Review has held that where a claimant injured her arm at home and was unable to return to her job as a bartender (because she was unable to afford the surgery necessary for her recovery) but was capable of doing other forms of work, her leaving was involuntary. BR-112431-EB-OP [165] (2/23/11) (Key). The Board held that a claimant’s leaving was involuntary where the claimant was experiencing respiratory issues while at work. Her belief that the presence of mold in the workplace was causing these issues was reasonable because the employer’s attempts to repair the leaking roof only marginally improved her issues and because she only felt complete relief when she left work. She took steps to preserve her employment when she complained to the employer about her health concerns and the employer refused to acknowledge them. BR - 0002 3797 42 [166] (5/6/2014).

Note: Job-related emotional stress is a particularly common reason for claimants to leave work, but frequently they will not reveal that they suffer from symptoms of stress or anxiety until directly asked. Job-related stress can be caused by a number of factors, including difficulty meeting the employer’s production demands, frequent dealings with hostile customers, repeated harsh criticism by the employee’s supervisor, etc. Adjudicators and review examiners may be skeptical of such cases, but a claimant will have a decent chance of proving the leaving was involuntary if the claimant has sought professional counseling or medical attention, has been prescribed medication for emotional problems caused by the stress, and/or can testify, and have friends or relatives testify, as to physical symptoms, such as trembling, panic attacks, difficulty sleeping, and appetite and weight changes. For example, the Board found that a combination of a claimant’s medical condition of stress and anxiety, recent discipline for poor work performance and an inability to transfer to get more help with her job duties created urgent, compelling and necessitous circumstances for resigning.  The Board noted that the claimant’s two-week notice to provide the employer an opportunity to find a replacement and to leave on good terms did not make the claimant’s reasons for leaving any less urgent.  BR-0017 4854 67 (11/22/16) (Key).

As with any other claim that leaving was involuntary, an employee who leaves because the job is a threat to the employee's health will be required to show that reasonable steps were taken to preserve the employment by, for example, bringing the problem to the employer’s attention so the employer has an opportunity to correct it, or requesting a leave of absence (if a leave would not be futile; i.e., if there is some reason to think that, at the conclusion of the leave, the job would be less harmful or the employee more able to tolerate the job). (See Question 30 [117].)

Leaving work due to illness or a medical condition can also constitute “urgent, compelling and necessitous circumstances” even if the illness is not caused by the job, where the illness permanently disables the employee from performing the job (but not other kinds of work) or when the illness is temporary and the employer refuses to grant a leave of absence. See AH c. 7, § 4B.3; BR-114436-A [167] (10/12/10) (claimant’s need for medical treatment in Morocco preventing his timely return was for urgent, compelling reasons).

The Board held that a claimant’s decision to retire was involuntary when his employer gave him the option between forced retirement and voluntary retirement because his severe medical condition (loss of hearing) made it dangerous for him to continue working. BR - 0011 5387 80 [168] (6/12/2014).

Where the illness is temporary, in addition to requesting a leave DUA will expect the claimant to have brought the problem to the employer’s attention and to have given the employer a chance to offer a transfer to another position or to modify the job so that it is within the employee’s capabilities.

A claimant’s need to leave employment to temporarily move to Nevada to care for her mother when her employer denied her requests for leave of absence or part-time work made her separation involuntary. The Board found no distinction between an employee caring for an ailing parent and an employee caring for an ailing child. BR - 0002 4255 53 (5/23/14).

In any case where claimants leave work because of a health condition, they will probably be questioned about whether they are able and available to accept future work, pursuant to G.L. c. 151A, § 24(b) [158].

Although a claimant is subject to disqualification under G.L. c. 151A, 25(e)(1) [7] for leaving work to accompany or join a spouse or other person to a new location, exceptions to this rule occur when the move is necessary to protect the health of the spouse or other person. AH c. 7, § 4B.5.

Note: Advocates should ensure that DUA does not erroneously interpret §24(b) [158] (the able-and-available requirement) to disqualify claimants available only for part‑time work. (See Question 8 [105].)

Domestic violence frequently spills into the workplace; 96% of employed victims of domestic violence experience some kind of work-related problem due to violence. Victims may need to take time off from work to participate in criminal and civil legal proceedings and to address such effects of domestic violence as relocating their family or obtaining medical care. Victims may also need to leave their jobs for safety reasons where their abusers know where they work or know their commuting patterns to and from work.

Chapter 69 of the Acts of 2001, An Act Relative to the Eligibility for Unemployment Benefits for Victims of Domestic Violence, made numerous important changes to G.L. c. 151A [169], resulting in the payment of benefits to individuals whose separation from work is attributable to domestic violence or to the need to deal with the physical, psychological, or legal effects of domestic violence on the worker and her family. It is not necessary to prove that employees divulged the domestic violence to their employer prior to leaving their job. See BR-117242 (10/28/11).

The statute extends special considerations and eligibility for victims of domestic violence, which are found in provisions relating to: voluntary quit; leaving work for “urgent and compelling” personal reasons; discharge analysis; able-and-available and suitability requirements; and access to training. For example, voluntary quit provisions clearly provide for eligibility if an individual leaves a job because: (1) the individual fears future domestic violence at, or on route to and from, the individual’s place of employment; (2) the individual needs to relocate to another geographical area in order to avoid domestic violence; (3) the individual needs to address the physical, psychological, and legal effects of domestic violence; (4) the individual needs to leave employment as a condition of receiving services or shelter from an agency that provides support or shelter to victims of domestic violence; or (5) the individual’s leaving is due in any other respect to a reasonable belief that terminating employment is necessary to ensure their safety or the safety of their family. G.L. c. 151A, § 25(e), ¶ 7 [7].

Individuals who are fired are also eligible for benefits if they can show that the firing was due to circumstances resulting from domestic violence, including the individual’s need to address the physical, psychological, or legal effects of domestic violence. G.L. c. 151A, § 25(e), ¶ 2 [7].

The Board has held that because a claimant’s unreported absences were due to domestic violence, she was eligible for UI benefits.  BR-0022 2055 38 (8/31/18) (Key).  The Board noted that even though the claimant did not present hospital records of treatment for injuries inflicted by her abusive boyfriend, that the combination of police reports, restraining orders and the claimant’s undisputed testimony were sufficient.  Id.  Advocates should note, too, that under the statute, although police reports and restraining orders constitute alternate sources of proof of domestic violence, “a sworn statement from the individual attesting to the abuse” is sufficient proof.  G.L. c. 151A, § 1 (g1/2) [170].

Additionally, the law addresses an individuals' need to show they are “able and available” for suitable work. The law modifies the requirement by limiting “suitability” requirements for domestic violence survivors to work that is determined suitable only if the employer reasonably accommodates the individual’s need to address the physical, psychological, and legal effects of domestic violence. G.L. c. 151A, § 25(c), ¶ 2 [7]. The AH also provides that a claimant who is restricting availability to comply with the requirements of a shelter provider in order to receive or continue to receive shelter is still considered to be available for work. AH c. 4, § 3B.4; BR-111513 [171] (9/17/10) (upholding DUA's policy analysis that a claimant does not need to make oneself available where the claimant is complying with the requirements of a shelter for those escaping domestic violence.)

DUA has expanded access to training opportunities for domestic violence survivors by tolling the requirement that an individual must apply for approved training within the first 20 weeks of the UI claim if the delay is related to addressing the effects of domestic violence. G.L. c. 151A, § 30(c) [172].

Note: The AH includes important sections on how domestic violence issues should be handled, emphasizing the need for sensitivity and ensuring a claimant’s privacy. AH c 6, § 3D and c. 7, § 6. If a client reveals domestic violence, and this issue has not previously come to the attention of DUA, contact the Constituent Services at 1-877-626-6800 (toll free for area codes 351, 413, 508, 774, 908) or 617-626-6800 or email at constituent.services2@state.ma.us [173]. Cases identified as involving domestic violence are sent to a "confidential queue" on UI Online and handled by DUA's UI Policy and Performance Department. AH, c. 6, § 3.

Employee substance abuse, or conduct that derives from substance abuse, is often a factor in determining employee eligibility for UI benefits. It may arise in both quit and discharge cases discussed above—a UI claimant with a drinking problem may be disqualified for having voluntarily quit a job without good cause, or for engaging in alcohol-related misconduct or rule violations. Generally, if the employer can demonstrate that the claimant violated a company policy regulating the effect drugs or alcohol has on job performance at work, the claimant will be disqualified. On the other hand, in a Key Decision, the Board held that a claimant discharged for failing a breathalyzer test, could not be disqualified where he had consumed alcohol 10 hours before his shift and was not intoxicated or under the influence at work. BR-0031 2558 84 (10/30/19) (Key).

Drug or alcohol testing to determine compliance with the employer’s policy must meet relevant standards; the Board of Review, for example, has held that UI benefits could not be denied to a claimant where the only evidence of his drug use in violation of the employer’s policy was a positive drug test that did not follow the standards for drug testing set forth by the federal government, which required a “split urine specimen.” BR-109252-A [174] (02/24/2011) (Key); see also BR-110354 [175] (7/5/11) (Key) (where employer used a procedurally flawed drug test for marijuana and, even if the test were reliable, the level of marijuana present in the sample would not cause impairment at work, the claimant cannot not be disqualified for violation of the employer’s drug policy or for deliberate misconduct).

The Board held that a claimant was not disqualified from receiving UI benefits after being fired for refusing to take a drug test, where the claimant asserted his own privacy interest, and where the employer’s reasons (that the claimant’s driving duties were about to increase and another driver had just failed a drug test) were not included in its drug test policy.  BR-0019 4525 76 (3/20/17) (Key). The Board also held that a claimant was not disqualified for quitting when he reasonably believed he would be fired for refusing to take a random drug test. BR-114832-A (date missing from signature page) at p. 5. This case also suggests that employees who are unaware of an employer policy subjecting an employee to random drug tests and who are fired for failing such test may not be disqualified under § 25(e)(2) for a “knowing violation of a reasonable and uniformly enforced rule or policy of the employer” (emphasis added). Id.

If claimants leave work due to an alcohol-related incident, either on or off the job, they will not be disqualified under § 25(e)(1) [7] so long as they admit to being an alcoholic and are making a sincere effort to overcome the alcoholism. AH c.7, § 4B.1, and AH c. 8, § 1F.14. DUA’s SRH policy statements and state court cases have long recognized that a person addicted to alcohol is subject to an irresistible compulsion to drink. This negates the intentionality required for the claimant to be disqualified under either the deliberate misconduct or the knowing-rule-violation standard. Shepherd v. Dir. of the Div. of Emp't Sec [176]., 399 Mass. 737, 506 N.E.2d 874 (1987). Any conduct that is the product of an irresistible compulsion to drink (alcoholism) cannot be considered to be deliberate or willful and should not incur a disqualification for misconduct. AH c. 8, § 4.B.14.a. Alternatively, if claimants admit to being an alcoholic, they were temporarily incapable of adhering to the rule, due to alcohol-caused incompetence. This reasoning extends to a claimant who tested positive for alcohol in violation of a “last chance” agreement. The Board reasoned that where a claimant had been making a sincere effort to control her alcoholism, her inability to maintain her sobriety was not willful under the reasoning of the Shepherd decision. BR-0011 0254 86 (9/29/14) (Key).  However, where a claimant refused to accept any help in controlling his alcoholism, the Board found that the violation of a last chance agreement through unexcused absences, binge drinking and involuntary commitment to a detox facility by a court order constituted disqualifying behavior.  BR-122588 (3/29/13) (Key).

The Board of Review has concurred with the reasoning in Shepherd and reviewed its policies on alcoholism to take into account changes in cases and precedent, including the Americans with Disabilities Act. BR-109710 [177] (3/18/2010). In another decision, the Board ruled that although it does not read Shepherd to hold that alcoholism is an absolute defense to disqualification under § 25(e)(2) [7], a claimant may prevail if she demonstrates that, at the time of the misconduct, she “suffered from the disease of alcoholism, was unable to control the addiction, and that these two factors caused the wrongful behavior and discharge.” BR-110099 [178] (2/25/11), at p. 6. Notably, the Board found the claimant eligible even though, as a result of the claimant’s alcoholism, the claimant lost her driver’s license, which she needed for her job.

DUA maintains that individuals who lose their job due to loss of license have voluntarily caused their own separation. Olmeda v. Dir. of the Div. of Emp't Se [152]c., 394 Mass. 1002, 475 N.E.2d 1216 (1985) (claimant whose separation was caused by loss of license deemed to have voluntarily quit his job). However, Olmeda did not raise the question of alcoholism. If the loss of license resulted from admitted alcoholism, a claimant should still qualify for UI. See Carey v. King, Deputy Dir. of the Div. of Emp’t & Training, Greenfield District Court, CA No. 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”). See also BR-110099 [178] above, where the Board of Review specifically determined that if a loss of license leading to separation from employment resulted from admitted alcoholism, a claimant should still qualify for UI. The claimant’s refusal to take a blood-alcohol test after a car accident caused her to lose her license for 30 days, during which time she could not return to work. Determining that there was sufficient evidence showing the claimant suffered from alcoholism, the Board found that the claimant’s judgment was impaired when she refused to take the blood test, and thus her refusal to do so did not constitute “willful misconduct” under § 25(e)(2) [7].

Where a claimant’s work required a commercial driver’s license (CDL), and the claimant lost the license after he was arrested for driving under the influence, the Board held that in order to render the separation involuntary due to urgent, compelling, and necessitous reasons, that the claimant must show he knew he was alcoholic, tried, and was not successful in controlling the disease before the incident that caused him to lose his job. BR-0031 6220 54 (12/24/20). In this instance, the claimant demonstrated awareness of his drinking problem and made a concerted effort to address it before his arrest, rendering his separation involuntary. Compare id., with Constantineau v. Dir. Of Dep’t of Unemployment Assistance, 100 Mass.App.Ct. 1102 (July 19, 2021) (unpublished). In Constantineau, the Court of Appeals considered whether the claimant’s separation was for urgent, compelling, and necessitous reasons where he lost his CDL after his second arrest for driving under the influence. 100 Mass.App.Ct. 1102. Here the Court found the claimant’s failure to take steps to manage his alcoholism between his first arrest in February for driving under the influence and second arrest in June evidenced a failure to make reasonable efforts to preserve his employment, rendering his separation voluntary and disqualifying. Id.

A claimant’s need to seek alcohol-related treatment may constitute an urgent, compelling, and necessitous personal reason for leaving work, rendering the separation involuntary. However, the employee should request a leave of absence first, unless such a request is futile. See City of Woburn v. Comm'r of the Dep’t of Emp't & Training [179], 65 Mass. App. Ct. 1106, 837 N.E.2d 729 (2005); Note: AH c. 7, § 4B.1 (individuals in an intensive and/or inpatient treatment program may not be “able and available” for UI purposes until they complete their treatment program).

DUA policies and administrative decisions suggest that the agency is ambivalent about whether to apply this same “illness model” to workers’ addiction to illegal or prescription drugs. The agency does provide, however, that an employee who seeks drug or alcohol treatment and who cannot obtain a leave of absence from the employer is considered to have left involuntarily, for urgent, compelling, and necessitous reasons. AH c. 7, § 3B.3.

The marijuana decriminalization law (G.L. c. 94C, § 32L [49]), passed as a voter initiative in 2008, specifically provides that “possession of one ounce or less of marijuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits.” In August 2014, the Board issued a decision holding that a positive marijuana test alone does not render a claimant ineligible for UI. BR- 0012004801 [50]; see also, BR-0018 3168 60 (7/29/16) (Key) (holding that a positive test alone is not disqualifying where a claimant was not under the influence while working, injured accidentally while preforming her job duties and not subject to federal Department of Transportation rules). For a full description of how DUA treats the adjudication of  separations caused by possession of less than one ounce of marijuana, see AH c. 8, § 1F.14.b (9/18/15) 

The Board has also held that an employer’s policy of discharging employees for “any amount” of drug use does not constitute grounds for disqualification where the claimant’s off-duty use does not carry over to impairment at work. BR-113575 [180] (12/23/10). In addition, the Board held that absent a regulatory requirement prohibiting employees from working who test positive, a claimant is not disqualified for a positive drug test standing alone. BR-118149 [181] (5/9/2012) (Key).

Advocates may prevail if drug use was during non-work hours and not on work premises, or was prior to the start of employment. Thomas O’Connor & Co., Inc. v. Comm'r of Emp't & Training [182], 422 Mass. 1007, 664 N.E.2d 441 (1996) (rescript). Additionally, where a client denies drug use, advocates should challenge the accuracy and reliability of the drug test. See BR-110354 (6/3/11) [183] (Key) (finding that an employer did not meet its burden of proving that the claimant, who denied using marijuana, was working under the influence where it failed to provide evidence that the collection facility was certified or qualified to administer drug tests, that the urine sample was appropriately shipped from the collection facility to the lab, or that it was the claimant’s urine that had been tested).

There are several situations that DUA and the case law treat a discharge as a “voluntary quit” under G.L. c. 151A, § 25(e) [7](1), even though it is the employer who takes action to end the employment. For example, in Barksdale v. Dir. of the Div. of Emp't Sec [184]., 397 Mass. 49, 489 N.E.2d 994 (1986), the claimant was disqualified under § 25(e)(1) [7] on grounds that he “brought about his own unemployment” when he was fired for refusing to pay an agency fee that was the alternative to paying union dues under a state collective bargaining agreement. The logic behind the decision, which is sometimes referred to as a “constructive quit” analysis, is that the claimant voluntarily chose to refrain from paying the fee and thereby left work voluntarily.

A similar analysis was applied in Rivard v. Dir. of the Div. of Emp't Sec [153]., 387 Mass. 528, 441 N.E.2d 257 (1982), where the claimant was fired from a city job when his employer realized that the claimant had failed to take steps to remove a statutory impediment to his ability to hold the position. See also Olmeda [152] [152]v. Dir. of the Div. of Emp't Sec [152]., 394 Mass. 1002, 475 N.E.2d 1216 (1985); Harvard Student Agencies v. Dir. of the Div. of Emp't Se [185]c., 12 Mass. App. Ct. 871, 421 N.E.2d 470 (1981); AH c. 6, § 1A.9.

A frequent example is where the employer has a policy requiring an employee who is going to be absent to “call in.” The employer treats the failure to call in as job abandonment, and DUA will initially characterize this as a voluntary quit case, even where the employee re-contacted the employer and was told that the job was no longer available.

The same logic, if applied to other cases of deliberate misconduct, would lead to unfair results in many cases. An employee fired for drinking on the job, or embezzling the employer’s money, or refusing to follow orders could be described as voluntarily acting in a manner that would bring about his own unemployment, which could give rise to a § 25(e)(1) disqualification. This argument was rejected in Orellana v. Dir. of the Div. of Unemployment Assistance, Gloucester District Court, CA No. 1139 CV 0101 (2010) (holding that an employee who was told to ‘find work elsewhere’ after showing up to work smelling of alcohol was effectively discharged, and that a decision to deny him UI on the grounds that he had quit was precluded by the manner of his discharge).

Note 1: The flaw in this analysis is that it switches the burden of proof from the employer, who bears it under § 25(e)(2) [7], to the employee, who has the burden under § 25(e)(1) [7], and may circumvent some of the careful “state of mind” assessment required under § 25(e)(2) [7].

Note 2: DUA sometimes overuses the “constructive quit” analysis. Advocates should be on guard and insist that the principles of cases like Rivard and Olmeda be limited strictly to their facts and to situations where a claimant’s actions and expressions show a clear intent to end her employment relationship. The Appeals Court has addressed this issue in an unpublished opinion, Saunders Enterprise Payroll Corp. v. Comm'r of the Dep’t of Emp't & Training [186], 61 Mass. App. Ct. 1123, 814 N.E.2d 36 (2004); See also Annotation, Unemployment Compensation: Eligibility Where Claimant Leaves Employment under Circumstances Interpreted as a Firing by the Claimant but As a Voluntary Quit by the Employer, 80 ALR 4th 7 (1990), and Sacco v. Nordberg, Malden District Court, CA No. 9550 CV 1753 (1997) (holding that in response to Court’s Remand Order, the Board could not reverse its prior decision that claimant had been discharged and decide that claimant had quit).

On the other hand, a discharge may not convert into a constructive quit where the employer sought to execute a new contract with the employee, and the employee was terminated for refusing to do so. In Pulde v. Dir. of the Div. of Unemployment Assistance [91], 84 Mass. App. Ct. 1122, 998 N.E. 2d 375 (Mass. App. Ct. 2013) (unpublished), the Appeals Court vacated and remanded the review examiner’s decision, holding that the DUA should have reviewed the case under § 25(e)(2) [7](discharge), not § 25(e)(1) [7](quit). The employer had presented the employee with a conditional reinstatement agreement coupled, with a “sign this or else” ultimatum. The employee refused to sign the agreement because she believed that it may have terminated her rights as a union member. The employer then terminated the employee. The Court reasoned that the claimant’s refusal to alter the contractual terms of a collective bargaining agreement did not mean that she left her job voluntarily, therefore the DUA should not have applied § 25(e)(1). 

The Board, in at least two instances, has held that “last chance agreements” that a claimant refuses to sign constitute a discharge rather than a quit.  BR-0002 1377 85 (10/6/14) (Key) (same as Pulde); BR-0008 9856 93 (1/9/14) (Key) (finding that a last chance agreement was a firing not a quit, and the claimant was not disqualified as underlying conduct was poor work performance).

In determining whether separation from employment was due to quit or discharge, the Board noted that the examiner should take into consideration whether the employee made attempts to contact the employer in the days following being sent home to indicate that he wished to remain employed. BR-10232330 (11/21/2014). In the same case, the Board stated that the examiner should also consider whether the employee contested a company document indicating that the employee “quit” his job shortly after receiving this document.

The Board determined that a claimant did not quit but was discharged where she was out of work because she was sick, and when she was medically cleared to return to work, was told that the employer would call her if work was available but never contacted her again. BR-0037 6799 42 (4/29/21).

The Board has held where the employer stopped contacting the claimant for unknown reasons after he changed his scheduled from full time to per diem to start new part-time work, the claimant did not quit, but was discharged due to a lack of work. BR-0032 2392 04 (3/11/20). In another instance, the Board held that employer severed the employment relationship by responding to the claimant’s email that she could not return to work because of risk of COVID-19 by informing her of the date of her last day of work. BR-0046 5652 58 (12/16/20).

The Board has held that where an employer did not accept the terms of a claimant’s proposed consulting agreement in lieu of continued employment, the proposal did not amount to a notice of resignation.  Therefore, the claimant could not be disqualified after discharge where there was no misconduct.  BR-0018 7766 38 (11/14/16) (Key).  And where a claimant failed his probationary period as a newly promoted supervisor and refused to reapply for a cashier position, the Board determined that he was effectively discharged. BR-0008 9910 74 (6/9/14) (Key).

Note 3: When it is unclear if separation from employment was due to quit or discharge, an advocate arguing that separation was due to discharge should also present arguments that even if the separation was due to quit, the employee was entitled to benefits because such quit was the result of “urgent, compelling, and necessitous reason” or “good cause attributable to the employer.” Failure to present facts that support such arguments during the hearing could result in disqualification for UI benefits if the review examiner determines that separation was, in fact, due to “quit.” See BR-1498659 (11/21/14).

The Board ruled that where employees leave their employment under the “reasonable belief” that they are “about to be fired,” the reason for separation from employment for UI purposes is “discharge.” BR-10232330 (11/21/2014); BR - 0002 4910 00 (3/27/2014). In such cases, “[their] separation is not disqualifying if the impending discharge itself would not have been for disqualifying reasons.” BR - 0002 4910 00 (3/27/2014); see BR - 0008 9799 73 (2/7/2014).

 

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) [7]. 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 Se [187]c., 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) [7]; 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 [30]., 397 Mass. 433, 491 N.E.2d 1057 (1986); Santos v. Dir. of the Div. of Emp't Sec [188]., 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) [7]. AH c. 8, § 4; BR-110511 [189] (12/2/2009) (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- [150]2033616 [150] (2/4/2014) (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) [7]. See BR-2028524 (3/10/14) [190].