Nichols v. Auto Club Services & UIA – 12.158

Nichols v. Auto Club Services & UIA
Digest No. 12.158

Section 421.29(1)(b)

Cite as: Nichols v. Auto Club Services, Inc., Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).

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Appeal Pending: No
Claimant: Aisha Nichols
Employer: Auto Club Services Inc.
Date of Decision: November 19, 2015

HOLDING: Absences for good cause in violation of an employer’s no-fault attendance policy do not constitute misconduct under MCL 421.29(1)(b).

FACTS: In October 2012, claimant was hired as a customer sales and service representative for Auto Club Services Incorporated (“ACS”). After working for 90 days, ACS employees earned three days off from work for every six months. ACS had a written no-fault attendance policy with no written exceptions, and exceptions were very rare in practice. Between December 3, 2012, and February 5, 2013, claimant received three written discipline notices, two of which were related to absences or tardiness.

On February 28, 2013, while driving to work, claimant’s vision blurred, and she was unable to see. Claimant had previously experienced blurred vision and believed it was caused by “having a thyroid storm.” She left a voicemail with ACS informing them the (1) the reason for her absence was personal and (2) she could explain her absence upon her return on March 1, 2013.

Upon returning on March 1, 2013, ACS discharged claimant for her absence pursuant to their no-fault attendance policy. While being discharged, claimant informed ACS she felt unwell and could not see on February 28th. She did not provide medical documentation explaining her absence on the aforementioned date but had previously warned her employer she was not feeling well.

Claimant was disqualified from unemployment benefits pursuant to MCL 421.29(1)(b). During claimant’s hearing before an Administrative Law Judge (“ALJ”), the parties stipulated her absence was due to an illness, but there is a dispute whether the ALJ accepted that stipulation. The ALJ and subsequently, the Michigan Compensation Appellate Compensation (“MCAC”) and Wayne Circuit Court affirmed claimant’s determination of disqualified from benefits under MCL 421.29(1)(b). Claimant appeals arguing the lower tribunals’ (1) decisions were contrary to law and (2) fact finding was unsupported by competent, material, and substantial evidence.

DECISION: Claimant is not disqualified for misconduct pursuant to MCL 421.29(1)(b) because the absences were beyond her control, and thus, she had good cause for said absence.

RATIONALE: Misconduct has been defined as “conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Carter v. Mich. Employment Security Comm., 364 Mich. 538, 541; 111 NW2d 817 (1961). However, infractions that may cause termination do not necessarily constitute misconduct under MCL 421.29(1)(b). Hagenbuch v. Plainwell Paper Co., Inc., 153 Mich. App. 834, 837-838; 396 NW2d 556 (1986). Absenteeism and tardiness for reasons not beyond a claimant’s control constitute misconduct. Id at 837. However, absenteeism and tardiness for reasons beyond a claimant’s control which are otherwise with good cause do not constitute misconduct. Washington v. Amway Grand Plaza, 135 Mich. App. 652, 658; 354 NW2d 299 (1984).

The court argued the basis of claimant’s discharge was her accumulation of absences in violation of ACS’ attendance policy, not claimant’s failure to notify ACS of her medical condition to explain her final absence. This was confirmed by an ACS senior employee who testified that claimant would have been discharged due to the absences, regardless of whether she provided an explanation. Claimant provided evidence that her absences and tardiness prior to the February 28th incident were due to one or more chronic medical conditions related to her thyroid. Thus, these absences were beyond her control and constituted good cause.

The lower tribunals’ factual findings and ACS’s offered evidence was not inconsistent with claimant’s showing of good cause for her absences. Furthermore, the lower tribunals did not determine that claimant’s absences were without good cause and thus, erred in disqualifying claimant under MCL 421.29(1)(b). The Court held claimant was wrongfully disqualified for misconduct and remanded for further proceedings.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Latham v. Comcast Cablevision Corp. – 12.157

Latham v. Comcast Cablevision Corp.
Digest No. 12.157

Section 421.29(1)(b)

Cite as: Latham v. Comcast Cablevision Corp., Wayne County Circuit Court, No. 13-003859-AE (August 28, 2013).

Appeal pending: No
Claimant: Carmen Latham
Employer: Comcast Cablevision Corporation
Date of decision: August 28, 2013

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HOLDING: The Michigan Appellate Compensation Commission’s decision that Latham’s discharge for misconduct was contrary to law. Absent the provision of Comcast’s written policy on credit checks, there was not enough evidence to show that Latham’s actions rose to the level of misconduct.

FACTS: From April 3, 2006 until May 11, 2012, when she was discharged for misconduct, Latham worked for Comcast as an inbound sales executive. In March 2012, Comcast audited Latham’s work because she had not run credit checks on several accounts. On May 11, 2012 Latham was discharged. She then filed a claim for unemployment, but was ruled disqualified under the misconduct provisions of the act. According to the testimony of the employer at the ALJ hearing, credit checks are mandatory and the company’s policy does not allow employees discretion on whether to perform them. Latham was also found to have set up an account without Comcast’s permission, but believed she was following an appropriate course of action.

DECISION: The circuit court reversed the decision of the Michigan Appellate Compensation Commission and ruled that the claimant was not disqualified for benefits because of misconduct under Section 29(1)(b) of the act.

RATIONALE: Latham argued that under MRE 1002, the best evidence rule, Comcast was required to provide the written policy on credit checks rather than using testimonies of employees to demonstrate its contents. The circuit court agreed and stated that without this policy, it only had the statements of Comcast representatives to rely on to decide how much discretion Comcast employees are allowed. Without the written policy clearly defining Latham’s responsibilities, the circuit court found that her conduct amounted only to poor performance and not misconduct.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Kowalski v. Henry Ford Macomb Hospital – 12.143

Kowalski v. Henry Ford Macomb Hospital
Digest No. 12.143

Section 421.29(1)(b)

Cite as: Kowalski v. Henry Ford Macomb Hospital, unpublished opinion of the Macomb Circuit Court, issued January 27, 2012 (Docket No. 2011-2690-AE).

Appeal pending: No
Claimant: Robert P. Kowalski
Employer: Henry Ford Macomb Hospital
Docket no.: 2011-2690-AE
Date of decision: January 27, 2012

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HOLDING: It is not a willful and wanton disregard of an employer’s interests to repeatedly access confidential patient information without explicit authorization when (1) the employer had a vague and discretionary policy regarding access to the confidential information, and (2) the employee, in the course of accessing information related to his job duties, is unable to avoid viewing confidential information unrelated to his assigned tasks.

FACTS: Claimant (appellant) worked as a regulatory documentation clerk at the Henry Ford Macomb Hospital.  As a documentation clerk, claimant used a computer system (the MIDAS system) to enter patient Medicaid information.  Although claimant had unrestricted access to the MIDAS computer suite and all its associated confidential patient information, the employer claimed that claimant was only authorized to view information on two particular MIDAS screens.  The employer maintained that claimant was only to access information that he had a “need to know.”  Claimant testified to his belief that he was authorized to view information in any part of the MIDAS system in order to complete job-related tasks.  After claimant submitted a report to his supervisor that contained patient information outside the scope of claimant’s supposed purview, a computer audit was initiated to investigate claimant’s MIDAS access history.  The audit revealed that claimant had accessed MIDAS screens with information that the employer considered unrelated to his job duties.  Claimant testified at a hearing before an ALJ that he had accessed the information on these screens in order to perform job-related tasks.  Although the ALJ found that “the employer failed to establish that [claimant] willfully, wantonly, and intentionally . . . disregard[ed] . . . standards of behavior which the employer had the right to expect,” the Board of Review reversed the decision.  The Board based their decision on a finding that claimant deliberately accessed a file without authorization.  At the Board hearing, claimant presented evidence that the MIDAS system required him to go through the allegedly unauthorized screens in order to access the authorized screens.

DECISION: Decision of the Board of Review was not supported by competent, material, and substantial evidence on the whole record.  Decision of the Board of Review reversed and decision of the ALJ affirmed.

RATIONALE: Because (1) there were valid reasons for claimant to access the entire MIDAS system, rather than the limited use supposed by the employer’s “need to know” policy, and (2) access to the authorized screens required going through the unauthorized screens first, the claimant’s actions were a “good faith error in judgement.”

Digest Author: James Mestichelli, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Bixler v. Concentra Health Services, UIA – 12.142

Bixler v. Concentra Health Services, UIA
Digest No. 12.142

Sections 421.29(1)(m) and 421.29(1)(b)

Cite as: Bixler v. Concentra Health Services, Inc., Wayne Circuit Court, No. 11-009212-AE

Appeal pending: No
Claimant: Barbara Bixler
Employer: Concentra Health Services, Inc.
Docket no.: 11-009212-AE
Date of decision: January 24, 2012

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HOLDING: The burden of proof on the employer to prove the the Claimant ineligible under 29(1) prevents the ALJ from “questioning the [Claimant] into proving the case against her, effectively forcing her to carry the burden of proof against herself.” Although the ALJ has “a duty to decide benefits regardless of the action or inaction of the employer”, and may independently question witnesses, such questioning must not be “used as a tool to circumvent the requirement that the employer carry the burden of proof”.

FACTS: Claimant smoked a small amount of marijuana for the first time in 35 years. One and a half days later, she was pulled for a random drug screening at her job as a receptionist for Concentra. She failed the drug test and was subsequently terminated. Concentra fired her over the phone and she stated at trial that the reason given was the positive drug test. She then received 25 of 26 available unemployment insurance payments before the UIA sued to declare her ineligible and for restitution totaling $7,025. Concentra failed to appear at the hearing. At the ALJ level, the employer’s side offered no evidence of the positive drug test. During questioning, however, after objections, Claimant answered that she remembered seeing the positive test, and that she assumed, logically, that it was caused by her drug use two days prior. Relying on this evidence, the ALJ found her ineligible, but ruled that UIA was not entitled to restitution because it had been notified of her potential ineligibility five months before it ceased to pay her benefits. On appeal, the Board of Review upheld Claimant’s ineligibility but reversed on the restitution because the agency’s continuance of payments was due to their high volume at that time and not due to an administrative error. Claimant appealed to the Circuit Court of Wayne County.

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

RATIONALE: The burden of proof on the employer to demonstrate a 29(1) defense cannot be circumvented by the special rule allowing ALJs to question witnesses and to make eligibility determinations in the absence of employer intervention. Thus the burden of proof rule trumps the special ALJ questioning rule. The alternative outcome would have been that the rule allowing ALJs to independently question Claimants overrides the burden of proof rule. Under this hierarchy of rules, however, “the employer would never have to appear in a drug test case”. The temptation to make the witness admit to her drug use may be motivated by a legitimate concern for the public interest, since the people have decided, via the legislature that those fired for drug use are ineligible for benefits. However, the same public also decided that the burden of demonstrating 29(1) defenses falls on the employer.

The court also noted that the burden shifting is especially “troublesome when it comes to ascertaining whether the test was administered in discriminatory manner”. Since the employer made no appearance, and thus gave no account as to how the test was administered, the Claimant had no means to challenge the test as discriminatory. Note that the test being non-discriminatory is a condition of the employer’s 29(1)(m) defense, not a counter attack available to claimants. Thus a drug tests non-discriminatory status is subject to the employer’s burden of proof. The ALJ may have assumed that, because we know that the Claimant in this case had, in fact, used drugs, the test couldn’t have been discriminatory, because it was accurate. Since part of the administration of drug tests is the selection of employees to take the test, accuracy of the result is not sufficient to show that the test was not administered discriminatorily. Again, without the employer offering some account of the test’s administration, the Claimant had no real opportunity to challenge it on those grounds. As the court stated “She could not cross examine an empty chair.”

Digest Author: James Fahringer, Michigan Law, Class of 2018
Digest Updated: 3/1/2016

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

 

Bechill v. Benzie County Government Center – 10.98

Bechill v. Benzie County Government Center
Digest No. 10.98

Section 421.29(1)(a)

Cite as: Bechill v Benzie Co. Gov’t Ctr, Benzie Circuit Court, No. B 2007-21980-RM2-201487W (August 21, 2009).

Appeal pending: No
Claimant: Richard J. Bechill
Employer: Benzie County Government Center
Docket no.: 201487wh
Date of decision: August 21, 2009

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HOLDING: When a claimant voluntarily terminates his or her employment, a significant reduction in wages (via a reduction in work hours) constitutes good cause attributable to the employer as a matter of public policy.

FACTS: Claimant was a dispatcher at the Benzie County Sheriff’s Office. For the first five months of his employment, Claimant was working an average of 40 hours per week. Over the summer, as a result of a myriad of factors, Claimant voluntarily worked an average of 18.25 hours per week. When Claimant saw that he was only scheduled for 3 days of work (16-20 hours) for the entirety of the next month (which he has not requested), Claimant voluntarily terminated his employment.

Claimant applied for unemployment benefits but was denied. He subsequently appealed this decision and the Board of Review upheld the denial of benefits due to the fact that (1) Claimant could not show proof that he was guaranteed a certain number of hours per week and (2) Claimant failed to show that a reasonable person would have quit instead of filing a grievance under the collective bargaining agreement that governed Claimant’s employment. Claimant then submitted a request a rehearing which was denied.

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

RATIONALE: As a matter of public policy, a non-voluntary, significant reduction in wages constitutes good cause attributable to the employer. If the court did not allow this to constitute good cause, this could allow employers to reduce wages near benefit level instead of releasing an employee. This would compel the employee’s resignation while simultaneously making them ineligible for benefits. Robertson v. Brown, 139 So. 2d 226, 229, 100 ALR 2d 1052 (La. Ct. App. 1962). This could make reducing hours a weapon of control for employers to make employees comply with their demands. Bunny’s Waffle Shop, Inc. v. Cal. Emp’t Comm’n, 151 P.2d 224, 227-28, 24 Cal. 2d 735, 741-43 (1944).

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 1/6/2016

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