Decess v. Central State Community Service – 12.137

Decess v. Central State Community Service
Digest No. 12.137

Section 421.29(1)(b)

Cite as: Decess v Central State Community Service, unpublished opinion of the Ingham County Circuit Court, issued December 14, 2010 (Docket No. 10-664-AE).

Appeal pending: No
Claimant: Tiffany L. Decess
Employer: Central State Community Service
Date of decision: December 14, 2010

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HOLDING: The Carter v Employment Security Comm, 364 Mich 538 (1961) requirement of “carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests” requires more than mere negligent or inadvertent behavior.

FACTS: Claimant was employed by Central State Community Service as a direct caregiver to six developmentally disabled residents from December 6, 2006 until she was fired on November 3, 2008. She was fired for allegedly leaving a resident unattended in a running van for 3-5 minutes while she went inside the home. Claimant testified that the resident was never out of her sight.

The ALJ found Claimant disqualified for misconduct. This decision was affirmed by the Board of Review.

DECISION: The Circuit Court reversed the Board of Review decision because it was contrary to law and not supported by competent, material, and substantial evidence on the whole record.

RATIONALE: There was uncontradicted Claimant testimony in the record that Claimant followed the practices that she had been trained on. The employer offered no evidence to the contrary. There was no evidence produced by the employer that could prove statutory misconduct, whether deliberate or negligent.

Following the Carter standard, the Circuit Court found that even if Claimant had been negligent, Carter requires the violation be more than negligent or inadvertent. There was no evidence in the record to support a finding that Claimant had acted with carelessness amounting to a disregard of her employer’s interests.

Finally, the Circuit Court relied on Razmus v Kirkhof Transformer, 137 Mich App 311 (1984) and Linski v Employment Security Commission, 358 Mich 239; 99 NW2d 795 (1966) to find that violating an employer’s rules is not, per se, misconduct within the meaning of the statute.

Digest author: Andrea M. Frailey, Michigan Law, Class of 2017
Digest updated: 10/31/2017

Hecko v. Continuum of Clio – 12.140

Hecko v. Continuum of Clio, UIA
Digest No. 12.140

Section 421.29(1)(b)

Cite as: Hecko v Continuum of Clio Inc, unpublished opinion of the Genesee County Circuit Court, issued December 1, 2010 (Docket No. 09-90617-AE).

Appeal pending: No
Claimant: Cheryl K. Hecko
Employer: Continuum of Clio, Inc.
Date of decision: December 1, 2010

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HOLDING: Working while off the clock is not misconduct under Carter v MESC, 364 Mich 538 (1961).

FACTS: Claimant worked for employer as a housekeeper from February 3, 2000 to November 20, 2007. Claimant regularly came into work early and worked off the clock because she wanted to “give more than a hundred percent to my job because [she] liked [her] job.” Claimant was fired after she was injured while working off the clock. Employer stated she was fired for working off the clock and Claimant stated she was fired for getting injured.

The ALJ found no misconduct. Board of Review reversed.

DECISION: The Circuit Court reversed the Board of Review’s decision because it was contrary to law and not supported by any competent, material, and substantial evidence on the whole record.

RATIONALE: The Board of Review misapplied the Carter standard. There was no evidence in the record to show that Claimant’s working off the clock was done in willful or wanton disregard of the employer’s interest.

In addition, while irrelevant, the Circuit Court found that Claimant was fired for being injured, not for working off the clock.

Digest author: Andrea M. Frailey, Michigan Law, Class of 2017
Digest updated: October 30, 2017

Phillips-Johnson, Inc v Galilei – 12.148

Phillips-Johnson, Inc v Galilei
Digest no. 12.148

Section 29(1)(b)

Cite as: Phillips-Johnson v Galilei, unpublished opinion of the Michigan Court of Appeals, issued May 11, 2010 (Docket No. 291174).

Appeal Pending: No
Claimant: Cynthia Galilei
Employer: Phillips-Johnson, Inc.
Docket no.: 08-000341-AA
Date of decision: May 11, 2010

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HOLDING: Claimant’s failure to appear to work one day did not constitute misconduct when her absence was due to a circumstance outside of her control, timely notice was given to her employer, she was not warned that she would be discharged if she did not attend work, and she was able to have another individual cover her shift. As Claimant did not commit misconduct, Claimant’s is not disqualified from benefits after being involuntarily discharged.

FACTS: Claimant worked as the sole employee of an insurance office and was discharged after she did not appear for work on November 3, 2006. Claimant gave her employer two months’ notice that she had a court date for her divorce proceeding, but Employer did not allow Claimant to take the day off. Claimant did not attend work that day. Employer did not warn her that if she missed that day she would be terminated. Claimant made arrangements for someone to cover for her and called in after her court appointment to make sure somebody was doing so.

Claimant was denied benefits by the UIA which was upheld by the ALJ. The Board of Review reversed the finding of the ALJ and stated that Claimant’s absence to appear in court was beyond her control. The employer appealed to the Circuit Court which reversed, in part, the Board of Review’s decision. The Circuit Court found that while the evidence showed that Claimant was not given permission to take the day off, her failure to attend work did not constitute misconduct, as she did have sufficient reason to miss work, was not given notice that her job was at risk if she did not come in, and found another employee to cover her position for the day. The employer appealed to the Michigan Court of Appeals.

DECISION: The Court affirmed the decision of the Circuit Court by finding that Claimant’s conduct did not constitute misconduct under 29(1)(b) of the MES Act and Carter v MESC, 364 Mich 538 (1961).

RATIONALE: The Court found that the Claimant had not committed misconduct because: “she was only absent for one day, she timely sought permission, the reason for her absence was not frivolous, she was not advised that the infraction would be viewed as warranting dismissal, and arrangement were apparently made in advance for coverage of the office.” Thus, although her absence was “unsatisfactory conduct”, pursuant to Carter, it did not rise to the level of misconduct sufficient to disqualify her from receiving benefits.

Digest Author:  S. Pandya
Digest Updated: 8/14

Long v. Hudsonville Body Shop, Inc. – 12.145

Long v. Hudsonville Body Shop, Inc.
Digest No. 12.145

Section 421.29(1)(b)

Cite as: Long v Hudsonville Body Shop, Kent County Circuit Court, No. 09-06869-AE (November 20, 2009).

Appeal pending: No
Claimant: Jason Long
Employer: Hudsonville Body Shop, Inc.
Docket no.: 203605W
Date of decision: November 20, 2009

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HOLDING: The Board’s decision that Long was discharged for misconduct connected with his work was not contrary to law and was supported by substantial evidence. Long willfully and intentionally disregarded Hudsonville Body’s interests when he violated the company’s drug policy by offering to obtain illegal drugs for an employee of another company in the same building.

FACTS: On November 15, 2008, Long’s car broke down on his way to work. Mike Zwak, a tow-truck driver employed by Hudsonville Towing, came to tow Long’s car. Hudsonville Body and Hudsonville Towing operated out of the same building and both referred business to each other. Both companies provided services for law enforcement. Zwak alleged that Long initiated a conversation where Long asked if Zwak smoked “the good stuff” and that he could get Zwak some. Zwak declined. The owner of Hudsonville Body learned of this incident and terminated Long’s employment pursuant to its policies prohibiting the use, sale, or possession of illegal drugs on or off the premises during business hours. Long denied offering to sell Zwak drugs.

DECISION: The circuit court affirmed the Board of Review’s decision, which found the claimant to be disqualified for benefits because of misconduct under Section 29(1)(b) of the MES Act.

RATIONALE: Hudsonville Body strongly emphasized to Long their illegal drug policy and their business relationship with law enforcement. While Hudsonville Towing was a separate company, they operated out of the same building as Hudsonville Body and the two referred business to each other. Long argued that, under Hagenbuch v. Plainwell Paper Company, while an employer can fire an employee for actions while not working and not on the employer’s premises, the actions are not necessarily misconduct in connection with his work under the Act. The circuit court reasoned that in some cases an employee’s actions, while not working and not on the premises, might not be misconduct connected with his work, Hagenbuch does not mandate such a finding in every case.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 1/6/2016

 

Physicians Health Plan of Mid Michigan v. Chapman – 12.149

Physicians Health Plan of Mid Michigan v. Chapman
Digest No. 12.149

Section 421.29(1)(b)

Cite as: Physicians Health Plan v Chapman, unpublished opinion of the Ingham County Circuit Court, issued December 16, 2008 (Docket No. 08-628-AE).

Appeal pending: No
Claimant: Shanika Chapman
Employer: Physicians Health Plan of Mid Michigan
Date of decision: December 16, 2008

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HOLDING: It is misconduct as a matter of law when an insurance company employee committs insurance fraud in violation of her employer’s human resources manual.

FACTS: Claimant worked in customer service for the employer insurance company; her job duties included assessing claims and administering customers’ financial obligations. Claimant was fired after she revealed to her employer that she committed criminal fraud by filing a false claim against her car insurance company.

At the ALJ hearing, the employer cited its H.R. policy manual as permitting employee firings for criminal activity, which could harm the employer’s public image. But, the ALJ decided Claimant was still not disqualified from receiving benefits for misconduct. The Board of Review affirmed, citing the mandate to interpret the meaning of misconduct narrowly to avoid disqualification.

DECISION: Reversed. The Circuit Court determined that claimant’s conduct constituted misconduct connected with her work, disqualifying her from benefits.

RATIONALE: The Circuit Court surveyed various cases regarding whether off-duty conduct may be sufficiently connected to a claimant’s work to constitute misconduct. Ultimately, it concluded that, as a matter of law, the filing of a false insurance claim constituted a wanton disregard of the employer’s interests and standards of behavior. This behavior clouded Claimant’s ability to fulfill her job duties, particularly given her unique financial responsibilities; sufficiently involved the employer’s interests; and adversely affected the employer’s behavioral expectations of employees.

Digest author: Austin L. Webbert, Michigan Law, Class of 2017
Digest updated: 10-31-2017

Nassif v. Northwest Benefits, Inc. – 12.147

Nassif v. Northwest Benefits, Inc.
Digest No. 12.147

Section 421.29(1)(b)

Cite as: Nassif v  Northwest Benefits, Unpublished Opinion of the Saginaw County Circuit Court, Issued Sep. 30, 2008 (Docket No.07-066426 AE 4).

Appeal pending: No
Claimant: Kevin C. Nassif
Employer: Northwest Benefits, Inc.
Docket no.: 07-066426 AE 4
Date of decision: September 30, 2008

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HOLDING: The decision of the board of review is affirmed. Claimant is disqualified for unemployment benefits under the misconduct provisions of 29(1)(b) of MES.

FACTS:  Claimant worked for Northwest Tire & Service Inc., alk/a Northwest Benefits Inc. as a store manager. His employment was terminated for a series of claimed false statements and misconduct occurring within a relatively short time period.

Following his termination from employment claimant was initially found qualified for unemployment benefits. This initial decision of the Unemployment Agency was affirmed following a referee hearing but was subsequently reversed on appeal to the Board of Review.  Both the ALJ and the Board found evidence of misconduct.

Claimant is appealing the Board of Review’s finding of misconduct. Claimant additionally contends that the Board’s determination is the product of unlawful procedure and/or otherwise affected by substantial and material irregularities based on two different letters he received from his former employer.

The first letter cited by the claimant was from his former employer’s counsel informing him that pursuant to the terms of termination he was to have no contact with any Northwest stores or current employees for any reason. Claimant understood this as meaning he was prohibited from contacting any employees even to seek their help and to testify on his behalf, and that had he known this was not the case he would have better prepared his case.

The second letter requested that he consent to written argument before the Board of Review. Claimant questions whether the Board of Review considered any additional written arguments or testimony before making its decision and if so, should he not have been afforded the opportunity to respond

DECISION: When viewed in totality, these incidents establish a willful disregard of the employer’s interests and constitute “misconduct” within the meaning of the statute. Further, there is not enough evidence to support claimant’s contention that the Board’s determination was the product of unlawful procedure and/or otherwise affected by substantial and material irregularities.

RATIONALE: In regards to the incidents in question, the court found that while the claimant’s conduct runs the continuum from mere negligence to the deliberate violation of rules and apparent indifference to one’s obligations as an employee, when viewed in totality, these incidents establish a willful disregard of the employer’s interests and constitute “misconduct” within the meaning of the statute.

In regards to claimant’s contention that the Board’s determination was the product of unlawful procedure and/or otherwise affected by substantial and material irregularities., the court found an insufficient basis for setting aside the decision of the Board of Review and/or ordering a new hearing.

In regards to the first letter, the court found that the claimant has not demonstrated to the satisfaction of the court that additional testimony would have made any difference to the determination of any issues of importance to the case since all the persons who were directly involved in the incidents that led to claimant’s termination testified at the hearing. The court did find that claimant could have called additional witnesses, the testimony that they could have been able to provide would not have shed any additional light on his termination.

In regards to the claimant contention that the Board’s determination was the product of unlawful procedure In regards to the second letter cited by the claimant, the court found that  there was nothing in the file to indicate the Board of Review considered anything other than the record made at the referee hearing. There was no request for additional evidence, no oral presentation made, and if the Board did consider any additional briefs, it was only by claimant’s consent. The copy of the letter made part of the file does not indicate that claimant even signed the incorporated consent language found in the body of the letter. The court found that at present, all that can be said is that no consent was given and no additional written argument was made.

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Mowatt v. Village of Birch Run – 12.146

Mowatt v. Village of Birch Run
Digest no. 12.146

Section 421.29(1)(b)

Cite as: Mowatt v Village of Birch Run, Saginaw County Circuit Court, No. 08-000001-AE-2 (August 20, 2008).

Appeal pending: No
Claimant: Robert Mowatt, Jr.
Employer: Village of Birch Run
Docket no.: 190282H
Date of decision: August 20, 2008

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HOLDING: Claimant’s failure to sign an Improvement Plan aimed at advancing his job performance was conduct related to his work and constituted a deliberate and willful act against his employer’s interests. Thus, claimant’s failure to sign the plan amounted to disqualifying misconduct to bar claimant from unemployment benefits.

FACTS: On January 23, 2006, Robert Mowatt was fired from his position as Chief of Police by the Village of Birch Run. Mowatt failed to sign and acknowledge a performance improvement plan crafted by his employer to improve his job performance. Mowatt was first asked to sign the plan at a December 5, 2005 Village Council meeting. The Board of Review determined that failure to sign the improvement plan rose to the level of disqualifying misconduct.

DECISION: The circuit court affirmed the Board of Review’s decision, which found that claimant’s failure to sign the plan rose to the level of disqualifying misconduct under section 29(1)(b) of the MES Act.

RATIONALE: Claimant argued that the review of the Board’s record did not show that he refused to sign the plan, but rather that he simply needed clarification and could not sign the document as written. However, evidence showed that claimant had multiple opportunities to discuss the plan and address his concerns with the Village. Moreover, the Village decided that the improvement plan was in their best interest to advance claimant’s job performance. That claimant disagreed with the necessity of the plan is irrelevant to whether he acted deliberately against the interests of his employer. Thus, the court agreed that claimant’s outright refusal to sign the plan showed a willful disregard of his employer’s interests. Because the plan was directly aimed to improve claimant’s performance, his failure to sign the plan was related to his work. Further, a single incident of misconduct may satisfy the statutory meaning of misconduct under section 29(1)(b) of the MES Act. Tuck v. Ashcrafi’s Market Inc., Mich.App. 579, 589 (1986). Therefore, the court found that claimant’s insubordination amounted to disqualifying misconduct and the Board’s decision to deny him benefits was not contrary to law.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 1/6/2016

Deboer Nursing Home, Inc. v. Beasley – 12.136

Deboer Nursing Home, Inc. v. Beasley
Digest No. 12.136

Section 421.29(b), Rule 207 of the Rules of Practice Before Referees and MES Board of Review

Cite as: Deboer Nursing Home, Inc v. Beasley, Unpublished Opinion of the Muskegon County Circuit Court of Michigan, Issued April 2, 2008 (Docket No. 186922WC).

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Appeal pending: Yes
Claimant: Amenia H. Beasley
Employer: Deboer Nursing Home, Inc.
Tribunal: Muskegon County Circuit Court
Date of Decision: April 2, 2008

HOLDING: An Administrative Law Judge’s (ALJ) failure to “advise… and give every assistance” to an unrepresented claimant violates Rule 207 of the Rules of Practice Before Referees and MES Board of Review and is grounds for a remand for another hearing before a different ALJ.

FACTS: Claimant was employed by Deboer Nursing Home, Inc. until she was discharged for misconduct. Her alleged misconduct included (a) failure to turn on a patient’s personal alarm, (b) failure or refusal to respond to a resident choking with urgency, (c) leaving a resident in bed all day, (d) failure to monitor an Alzheimer’s resident as required, (e) leaving a resident in loose stool, (f) leaving a resident on a commode, and (g) failure to turn on a resident’s alarm, resulting in the resident falling. The ALJ found that the unrepresented claimant did not deny these events occurred and that her explanations for the incidents were not persuasive. Thus, the ALJ disqualified the claimant from benefits pursuant to MCL 421.29(b) because of misconduct.

The State of Michigan Employment Security Board of Review (“Board”) reversed the ALJ’s decision on August 28, 2007 on two grounds. First, the Board argued the claimant was not given the procedural protections by the ALJ guaranteed by Rule 207. Second, the incidents relied upon by the employer did not constitute misconduct under MCL 421.29(b).

DECISION: The ALJ failed to provide the procedural protections guaranteed by Rule 207 to the claimant in her original hearing. The remedy for violating Rule 207 is remand for new hearing with a different ALJ.

RATIONALE: The Court denied the Board’s second ground for reversal, specifically that the incidents did not qualify as misconduct. The Board’s explanation for that view was a disagreement with the ALJ’s assessment that the claimant’s explanations for the incidents in the original hearing were unpersuasive. The court denied the Board’s explanation because of an absence of legal precedent permitting the Board of Review, who did not view the witness or hear testimony, to assess the credibility of the witness.

However, the Court agreed with the Board that the claimant was not afforded the procedural protection guaranteed by Rule 207. Rule 207 reads as follows: “The referee shall secure such competent, relevant, and material evidence that he or she deems necessary to arrive at a fair decision… [and] shall advise the [unrepresented] party of his or her rights, aid him or her in examining and cross-examining witnesses, and give every assistance to the party compatible with an impartial discharge of the Referee’s official duties.” The ALJ specifically failed to protect the unrepresented claimant by (a) not guiding the claimant through the several exhibits submitted by the employer and (b) not asking the claimant any questions in response to the allegations.

The Court sought to prevent the consequences of the Board’s reversal from falling solely upon the employer. To achieve this, the Court remanded the issue for a new hearing with a different ALJ. To prevent violations of Rule 207 in the future, the Court provided two options to employers facing ALJs who were not complying with Rule 207. First, the employer could carry out the required procedures that the ALJ is tasked with under 207, thus assisting the claimant in presenting his or her case. Alternatively, the employer could stay silent, knowing the possible remedy ordered by the Board would be a decision that the employer pay benefits to the claimant.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Washington v. Michigan Training Unit, Department of Corrections – 12.151

Washington v. Michigan Training Unit, Department of Corrections

Digest No. 12.151
Section 29(1)(b)

Cite as: Washington v Michigan Training Unit, unpublished opinion of the Ingham County Circuit Court, issued March 27, 2007 (Docket No. 06-869-AE).

Appeal pending: No
Claimant: Shawonna Washington
Employer: Michigan Training Unit, Department of Corrections
Date of decision: March 27, 2007

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HOLDING: None of the following constitute misconduct under Section 421.29(1)(b): (1) absence for illness supported by a doctor’s note, (2) pre-authorized absence to attend a funeral, and (3) absence for inability to drive a long distance due to lack of gas money.

FACTS: Claimant’s employer required her to subscribe to a “last chance agreement” to address her job performance. The employer later deemed she violated it for: (1) absence for illness supported by a doctor’s note, (2) pre-authorized absence to attend a funeral, and (3) absence for inability to drive a long distance due to lack of gas money. Claimant was then disqualified from benefits by the UIA based on a determination of work-related misconduct. The ALJ and Board of Review affirmed.

DECISION: The alleged violations did not rise to misconduct under Section 421.29(1)(b).

RATIONALE: The lower decisions erred by failing to properly apply the Michigan Supreme Court’s “carelessness or negligence principle,” Carter v Employment Security Comm., 364 Mich 538 (1961), to the claimant’s conduct. This principle requires behavior to be more culpable than ordinary negligence or inadvertence—which was all the claimant’s behavior was—to be misconduct. The court found nothing in the record to support a finding of willful disregard of the employer’s interest by Claimant. At most, Claimant was unable to understand what was expected of her, made a good-faith error, or was inadvertently remiss. None of these failings rises to misconduct. Furthermore, even had Claimant violated the agreement, this would not have necessarily constituted misconduct. And in any case, as a matter of law such a violation would not be connected with the work because it was a rule of selection and not one of conduct. Reed v Employment Security Comm, 364 Mich 395 (1961).

Digest author: Austin L. Webbert, Michigan Law, Class of 2017
Digest updated: November 26, 2017

 

Laque v. Tru Tech Systems, Inc., UIA – 12.144

Laque v. Tru Tech Systems, Inc., UIA
Digest No. 12.144

Section 421.29(1)(a)

Cite as: Laque v Tru Tech Systems, Inc., Macomb Circuit Court, No. 2005-4944-AE

Appeal pending: No
Claimant: Michael J. Laque
Employer: Tru Tech Systems, Inc.
Docket no.: 2005-4944-AE
Date of decision: May 25, 2006

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HOLDING: When a claimant voluntarily terminates his or her employment, a withholding of wages by the employer pursuant to an IRS order constitutes good cause attributable to the employer when the employer continues such withholding long after the IRS order is resolved.

FACTS: Claimant held a traveling service job for Tru Tech, beginning January 2003 and ending in December 2004 when he quit due to withheld paychecks. In November 2004, Employer began to withhold wages earned by Claimant pursuant to a levy issued by the IRS. Claimant explained that the IRS had issued the levy by mistake and produced a release of the levy eight days after the IRS’s request for withholding. Employer continued to withhold paychecks due on December 2, 9, and 16, and on December 20, 2004, Claimant called Employer to end his employment due to the unnecessarily withheld pay. On December 18 (or earlier, based on the testimony of Employer), Claimant met with Employer to discuss changing his status to independent contractor. Employer failed to produce written record of any such discussion and claimant “vehemently disputed the employer’s testimony” that he had ever considered himself an independent contractor. When Claimant filed for unemployment benefits, his claim was denied by the Unemployment Insurance Agency. On appeal to an Administrative Law Judge, this decision was reversed and his claim was granted. On Employer’s appeal to the Michigan Employment Security Board of Review, the ALJ’s decision was at first reversed, then affirmed on reconsideration. Employer then appealed further to the District Court.

DECISION: The Board of Review decision is affirmed and Claimant is entitled to unemployment insurance benefits.

RATIONALE: When a justification for withholding pay, such as an IRS order, becomes ineffective (e.g., by an official rescission of the IRS order), employers immediately regain their duty to pay their employees in a timely fashion. For the relevant legal question of whether a “reasonable, average, and otherwise qualified worker” would give up her or his employment, such circumstances are essentially the same, from the worker’s perspective, as an employer withholding pay for no reason.

Digest Author: James Fahringer, Michigan Law, Class of 2017
Digest Updated: 1/6/2016