Hodge v. US Security Associates, Inc. – 16.91

Hodge v. US Security Associates, Inc.
Digest No. 16.91

Section 421.29; Section 421.38

Cite as: Hodge v US Security Associates, Inc., unpublished opinion of the Mich. Sup. Ct., issued February 6, 2015 (Docket No. 149984).

Appeal pending: No
Claimant: Carnice Hodge
Employer: U.S. Security Associates, Inc.
Date of decision: February 6, 2015

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HOLDING: A reviewing court is not at liberty to substitute its own judgment for a decision of MCAC that is supported with substantial evidence.

FACTS: Claimant was a security guard at an airport. Claimant was fired for accessing publicly available flight departure information on a computer at the request of a traveler in violation of the employer’s policy regarding the unauthorized use of computer equipment. The Administrative Law Judge (ALJ) disqualified claimant from unemployment benefits for committing misconduct under Section 421.29. The Michigan Compensation Appellate Commission (MCAC) affirmed, holding that the decision was made in conformity with the facts as developed at the hearing and properly applied the law to the facts. The Wayne Circuit Court reversed, concluding that claimant’s conduct did not warrant a denial of benefits because claimant was violating the employer’s policy in order to help a customer, and the Michigan Court of Appeals affirmed the Wayne Circuit Court’s reversal.

DECISION: The Court of Appeals judgment is reversed and the MCAC judgment is reinstated.

RATIONALE: The Wayne Circuit Court and the Court of Appeals applied an incorrect standard of review by substituting their own assessment of the relative severity of claimant’s violation of her employer’s rules for the assessment of MCAC. A reviewing court is not at liberty to substitute its own judgment for a decision of MCAC that is supported with substantial evidence. A circuit court must affirm a decision of the ALJ and MCAC if it conforms to law and if competent, material, and substantial evidence supports it. The ALJ was the only adjudicator who actually heard testimony and observed the demeanor of the witnesses while testifying, reviewed all the evidence in the record, and made findings of fact based on credibility of witnesses and weight of the evidence. MCAC’s assessment of claimant’s conduct was made within the correct legal framework and was therefore authorized by law and not contrary to law, so the courts below improperly reweighed the evidence in order to reach a different assessment in violation of Section 421.38 and Const. 1963, art 6, § 28.

Digest author: Winnie Chen, Michigan Law, Class of 2017

Digest updated: 11/19/2017

Dejarnette v HR Staffing Team, LLC– 10.124

Dejarnette v HR Staffing Team, LLC
Digest No. 10.124

Section 421.29

Cite as: Dejarnette v HR Staffing Team, LLC, unpublished opinion of the Michigan Compensation Appellate Commission, issued August 26, 2013 (Docket No.: B2013-07161:238484).

Appeal pending: No
Claimant: Pamela Dejarnette
Employer: HR Staffing Team, LLC
Date of decision: August 26, 2013

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HOLDING: Claimant is not disqualified for benefits under the voluntary leaving provision of  MCL 29(1)(a).

FACTS: Claimant worked for a staffing agency. Claimant was experiencing difficulties and notified her employer that she would no longer report to her last assignment. Claimant requested another assignment but the employer told Claimant no other assignments were currently available. After learning no other assignments were available, Claimant filed for benefits.

DECISION: The matter is referred to the Agency for determination under MCL 48(1) because Claimant left an assignment and that work remained available to her. Claimant may therefore be subject to offset under the lost remuneration provision of MCL 48(1).

RATIONALE: The Michigan Compensation Appellate Commission stated that the employer must first establish that a claimant voluntarily left employment before a matter can be addressed under MCL 29(1)(a). See Ackerberg v Grant Community Hospital, 138 Mich App 295 (1984). The court reasoned that Claimant had not voluntarily left her employment. Instead, Claimant left an assignment. Therefore, the court found MCL 29(1)(a) to be inapplicable in this case.

Digest author: Rita Samaan, Michigan Law, Class of 2017
Digest updated: October 25, 2017

Carter v. MLP MFG, Inc. – 16.75

Carter v. MLP MFG, Inc.
Digest No. 16.75

Section 421.38, Section 421.29

Cite as: Carter v MLP MFG, IncMuskegon Circuit Court, No. 02-41720-AE (February 18, 2003).
Appeal pending: No
Claimant: David Carter
Employer: MLP MFG, Inc.
Date of decision: February 18, 2003

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HOLDING: When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded).

FACTS: The administrative law judge issued an opinion dated July 20, 2001, which affirmed an agency determination denying the claimant unemployment benefits because of misconduct. The claimant’s agent appealed this opinion. The Board of Review affirmed the decision with an opinion dated November 9, 2001. On December 10, 2001, the claimant’s counsel filed his appearance and a timely request for a rehearing of the November 9, 2001 decision. The Board issued an order denying the application for rehearing on January 24, 2002. This January 24, 2002 order was not sent to the claimant’s attorney. Consequently, on April 29, 2002, the claimant’s attorney moved the Board to reopen the matter so that the claimant could file a timely appeal with the circuit court. In an order dated June 28, 2002, the Board denied the application for reopening, but acknowledged sending a copy of the January 24, 2002 order to the claimant and the claimant’s agent, but not the claimant’s attorney. On July 2, 2002, the claimant filed this appeal to the circuit court.

DECISION: The Board of Review erred in failing to send the claimant’s counsel a copy of the January 24, 2002 order.  When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded), which is to be read in a manner that does not produce an unjust result, even if the literal language of the rule suggests otherwise. Therefore the July 2, 2002 filing of this appeal was timely, and this Court will adjudicate the appeal on the merits. This Court finds that the ALJ’s decision was not contrary to law and therefore affirms the previous decision disqualifying the claimant for benefits.

RATIONALE: In construing administrative rules, courts apply principles of statutory construction. However, there is an exception “when a literal reading of the statutory language would produce an absurd and obviously unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” AG v LS Wood Preserving, Inc, 199 Mich App 149, 155 (1993). Reading Section 421.1101(1) literally (“A decision, notice, or order shall be served on each party and on the agent or attorney of record of each party . . .” (emphasis added)) would provide an unjust result in this case, as the purpose and policy of the rule is to provide notice. Thus the Board of Review needed to send the January 24, 2002 order to both the claimant’s agent and the claimant’s counsel, even though the rule uses the word “or.” Hence, the 30-day appeal period of Section 421.38(1) was tolled until the Board of Review issued its final order on June 28, 2002, and the July 2, 2002 filing of appeal was timely. Nevertheless, this Court finds that the ALJ’s decision was not contrary to law and was supported by competent, material, and substantial evidence on the whole record. The ALJ found the testimony of the cliamant’s supervisor to be credible. In doing so, he found that the claimant had engaged in three “no-call, no-show” absences which constitutes misconduct within the meaning of Section 421.29.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: 11/19/2017

Fowler v Marubeni Metal Blanking – 14.17

Fowler v Marubeni Metal Blanking
Digest No. 14.17

Section 421.29(1)(m)

Cite as: Fowler v Marubeni Metal Blanking, unpublished opinion of the Shiawassee County Circuit Court, issued December 15, 2006 (Docket No. 06-4352-AE).

Appeal pending: No
Claimant: David L. Fowler
Employer: Marubeni Metal Blanking
Date of decision: December 15, 2006

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HOLDING: A claimant cannot be disqualified from receiving benefits for a discharge resulting from the claimant’s refusal to submit to a drug test where the drug test was not administered in an impartial and objective manner.

FACTS: The employer decided to drug test the entire workforce due to a number of unusual occurrences, and because the employer was informed employees were using prescription drugs prescribed to other persons. The employees, including Claimant, were told that if they had a valid prescription and tested positive for that drug they would be okay.

When informed of the employer’s intent to test all employees, Claimant asked to speak with the plant manager. Claimant disclosed that he had taken Vicodin over the weekend from an earlier prescription and didn’t know if the prescription was “valid”. He asked to use his phone because he wanted to call his doctor and see if the prescription was “valid”. His request was denied because the employer was concerned that he might give the later shifts advance notice of the drug testing. No one from the employer was able to clarify what constituted a “valid” prescription. Claimant refused to take the test and was fired.

An ALJ found that Claimant was not disqualified for benefits under Section 29(1)(m)(ii) of the Act. The Board of Review reversed.   

DECISION: The Board of Review’s decision is reversed. Claimant is not disqualified from receiving unemployment insurance benefits under Section 29(1)(m)(ii) of the Act.

RATIONALE: For a claimant to be disqualified under Section 29(1)(m)(ii), he must refuse “to submit to a drug test that was required to be administered in a nondiscriminatory manner”. A claimant’s refusal to submit to a drug test cannot be adjudicated without first determining whether the test was administered in a nondiscriminatory manner. Under Section 29(1)(m)(ii)(C), for a drug test to be administered in a “nondiscriminatory manner”, it must be “administered impartially and objectively.”

Here, Claimant is not disqualified for benefits under Section 29(1)(m)(ii) because the drug test was not administered in a non-discriminatory manner because it was administered subjectively and based on improper information. Claimant made an appropriate request for clarification, and when the employer chose to give unclear and incorrect information, the risk of confusing a worker causing that worker to make a wrong decision was foreseeable. Further, the employer’s explanation to Claimant did not include the fact that Claimant would have the right to dispute the result of the testing.

Digest author: Stephanie Marshak, Michigan Law, Class of 2016
Digest updated: October 29, 2017

Hill v Department of Community Health – 16.76

Hill v Department of Community Health
Digest No. 16.76

Section 421.29; Section 421.32

Cite as: Hill v Dep’t of Community Health, unpublished opinion of the Wayne County Circuit Court, issued September 27, 2005 (Docket No. 05-514911-AE).

Appeal pending: No
Claimant: Darlene Hill
Employer: Department of Community Health; State of Michigan, Department of Labor & Economic Growth
Date of decision: September 27, 2005

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HOLDING: When a claimant incorrectly thinks she is terminated and there is no evidence that 1) she acted with deliberate intent to evade her job responsibilities, or 2) her employer communicated its expectations to her, she has not committed misconduct by failing to appear at work, even if it was ignorant of her to believe that she was terminated. Section 421.32 provides that if within ten days the employer does not respond to the Agency’s request for information, the Agency shall decide the matter on the information provided. Furthermore, if the employer cannot show that it reasonably could not meet the ten day deadline, all benefits paid before the employer’s reply was received are deemed proper.

FACTS: The patient Claimant was tending indicated that he did not want her in his home because Claimant could not physically perform the necessary tasks. Claimant thought that the patient was her employer, and did not realize that the Department of Community Health was actually her employer. Claimant did not seek a new assignment and thought her job was terminated.  The employer did not respond to the Unemployment Insurance Agency’s request for information, did not send a representative to the hearing, and did not file a brief on appeal. The Board of Review denied benefits to Claimant on the basis of a voluntary quit.

DECISION: The claimant’s disqualification from benefits is reversed.

RATIONALE: Claimant was not told how to seek another assignment. She did not appear to have acted with deliberate intent to evade her job responsibilities, nor was she warned of any deficiencies in her performance. “Unless an employer’s expectations can be expected to ‘flow naturally’ from the employee relationship itself . . . they must be communicated to the employee before they can serve as a proper basis for a charge of misconduct.” McAlpin v Wood River Med. Ctr., 921 P2d 178, 183 (Idaho 1966) (quoting Davis v Howard O. Miller Co., 695 P2d 1231, 1233 (Idaho 1984)). There was not evidence of communication here. A decision “cannot rest upon mere conjecture or speculation.” Clements v Clements, 2 Mich App 370, 374 (1966). Therefore, because the employer has the burden to show misconduct, the lack of evidence of misconduct here compelled a finding for the employee. In addition, the testimony of even a single witness (in this instance, the claimant) can meet the substantial evidence standard.

Section 421.32 provides that if within ten days the employer does not respond to the Agency’s request for information, the Agency shall decide the matter on the information provided. Furthermore, if the employer cannot show that it reasonably could not meet the ten day deadline, all benefits paid before the employer’s reply was received are deemed proper.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: October 30, 2017

 

Tuck v. ESC – 12.52

Tuck v. ESC
Digest No. 12.52

Section 421.29

Cite as: Tuck v ESC, 152 Mich App 579 (1986).

Court: Michigan Court of Appeals
Appeal pending: No
Claimant: Dave W. Tuck
Employer: Ashcraft’s Market, Inc.
Date of decision: April 24, 1986

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HOLDING: Breach of rules, negligence, or good faith error in judgment with respect to a single incident does not necessarily rise to the level of misconduct under the Carter definition. Claimant is not disqualified for misconduct because of the unauthorized removal of property, which has de minimis value, of an employer.

FACTS: Claimant, a meat-cutter, removed two cartons of fish from employer’s premises without authorization. Claimant observed the fish were thawed and could not be sold and took it upon himself to see to their disposal since the regular manager was unavailable. He removed the fish through the back door of the supermarket, which was strictly against his employer’s rule, and took it home to use as bear bait.

DECISION: Claimant is not disqualified from receiving unemployment benefits under section 29.

RATIONALE: Pursuant to Carter, not every breach of company rules rises to the level of misconduct for purposes of section 29. The court reasoned, “[i]t is clear that, while misconduct may justify an employee’s discharge for breach of company rules, not every such breach rises to the level of misconduct sufficient to disqualify the employee for unemployment benefits.”

The court notes that the employer had full authority to fire Claimant, but that did not mean he was disqualified from receiving benefits, necessarily.

Digest author: Travis R. Miller, Michigan Law, Class of 2018 (Board of Review original Digest)
Digest updated: December 23, 2017

 

Snyder v RAM Broadcasting – 16.34

Snyder v RAM Broadcasting
Digest No. 16.34

Section 29

Cite as: Snyder v RAM Broadcasting, unpublished opinion of the Washtenaw County Circuit Court, issued April 26, 1983 (Docket No. 8223718AE).

Court: Washtenaw Circuit Court
Appeal pending: No
Claimant: Ann Snyder
Employer: RAM Broadcasting
Date of decision: April 26, 1983

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HOLDING: The court held that a hearing notice was deficient under the Administrative Procedures Act and the due process clause of the Michigan and United States Constitutions where (1)  it was not a plain statement  of the matters asserted and (2) even if understandable, was not listed in the notice of hearing as an issue which would be presented before the referee.

FACTS:  Claimant filed a timely appeal after the Agency disqualified her from benefits under the Voluntary Quit provision of Section 29(1)(a).  During her hearing, testimony was taken regarding her availability to work and efforts to obtain a job during the period in which she claimed benefits. As a result, she was found disqualified for benefits under Section 29(1)(a) and the seeking work provision of Section 28.  On appeal, the claimant sought reversal of the of the judge’s finding on the “seeking work” issue.  She alleged that she did actively seek employment and was denied a fair hearing on this issue in violation of the Michigan Employment Security Act and the due process clause of the state and federal constitutions.

DECISION: The court held that the hearing notice was deficient under the Administrative Procedures Act and the due process clauses of the Michigan and United States Constitutions. In addition, the referee’s failure to inform the claimant of all issues he planned to decide during the hearing, along with the consequences of failing to meet her burden of proof violated the fairness requirement of Section 33 of the Michigan Employment Security Act.

RATIONALE: The court found that the hearing notice violated the Administrative Procedures Act (APA) provision requiring “a short and plain statement of the matters asserted.”  Here, the court found that “words and phrases divided by slashes and followed by a string citation . . . do not provide a reasonably understandable notification that an issue will be considered, especially when the notification is intended for a lay person.”  

In discussing the due process requirements under the state and federal constitutions, the court cited Hanson v State Board of Registration, 253 Mich 601, 607 (1931), holding that unless the right is waived, a party before a state agency is “at least entitled to a reasonably definite statement of the charge or charges preferred against the accused.”  Here, the court found that the notice of hearing was not reasonably calculated to inform the claimant of the pendency of the seeking work issue: “Whatever the purpose of this convoluted array of words and slashes, it was not to intelligibly notify the plaintiff that her entire benefits package prior to the hearing date was in jeopardy if she did not affirmatively prove her efforts in search of employment.” Thus, the hearing notice was deficient under the APA and the Michigan and United States constitutions.

The court further held that Ms. Snyder was denied a fair hearing where she was not apprised of all the issues the referee intended to decide, along with the consequences of the plaintiff’s failure to carry her burden of proof.  As a result, Ms. Snyder’s hearing violated the fairness requirement of Section 33 of the Act.

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: December 1, 2017

 

Butler v City of Newaygo – 10.125

Butler v City of Newaygo
Digest No. 10.125

Section 421.29

 

Cite as: Butler v City of Newaygo, 115 Mich App 445 (1982).

Appeal pending: No
Claimant: Neil Butler
Employer: City of Newaygo
Date of decision: April 21, 1982

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HOLDING: There was ample evidentiary support for the administrative decision that the claimant was ineligible for unemployment insurance benefits under MCL 421.29(1)(a).

FACTS: Claimant was superintendent of sewers, superintendent of water, and superintendent for public works for the City of Newaygo. The city manager relieved Claimant of his duties as superintendent of public works. However, he retained his other positions, and his salary remained unchanged. Claimant did not oppose this change.

One day, the city manager reprimanded Claimant for providing municipal equipment to a private contractor without having first secured the proper authorization from the city manager. In that same month, someone broke into a city pump house and ruined the engine. Everyone, including Claimant, who had keys to the pump house was asked to take a lie detector test regarding this incident. However, the test was not administered. Claimant then resigned, alleging that he was forced to do so.

DECISION: The circuit court order affirming the ALJ’s denial of the requested benefits is affirmed. Regarding Claimant’s second issue on appeal about transcript fees, the court found that Claimant is entitled to immediate return of any money advanced by him for circuit court transcripts.

RATIONALE: The court reasoned that although the city manager removed Claimant from the public works superintendent position without following the proper procedures by securing a city council resolution on it, the removal without a council resolution did not constitute good cause to quit. In addition, the reprimand was not without basis in city policy, which is uncontested by Claimant. Thus, the reprimand did not constitute good cause to quit either.

Further, Claimant’s feeling that he was personally affronted by the request to take a lie detector test does not constitute good cause to quit. The test was not required, and refusal to take the test was not met with threats for disciplinary action. Claimant objected to the lie detector test only because he felt unjustly accused for the pump’s damage, which is not good cause for quitting.

The court also rejected Claimant’s assertion that he was “‘compelled’ by the ‘iron hand of the tyrant [i.e., his employer]’” to resign, because it was not supported by the record. Awarding the Claimant unemployment insurance benefits would have undermined the legislative policy to combat the burden of involuntary employment under MCL 421.29(1)(a).

Digest author: Rita Samaan, Michigan Law, Class of 2017
Digest updated: October 25, 2017

Standard Automotive Parts Company v Employment Security Commission – 12.71

Standard Automotive Parts Company v Employment Security Commission
Digest No. 12.71

Section 421.29

Cite as: Std Auto Parts Co v Employment Security Comm, 3 Mich App 561; 143 NW2d 135 (1966).

Court: Michigan Court of Appeals
Appeal pending: No
Claimant: Ronnie Romans
Employer: Standard Auto Parts Company
Date of decision: June 28, 1966

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COURT OF APPEALS HOLDING: A claimant who was summarily discharged because he refused to sign a “loyalty oath” until after consulting with the union about his status is not disqualified for misconduct.

FACTS: Claimant worked as a supervisor at the employer. The employer found out that Claimant would be among several employees trying to organize into a union and tried to stop him from doing so. Employer demanded that Claimant sign a document promising to remain neutral and not to engage in any union organizing activities. Claimant refused to sign and was fired.

DECISION: Claimant is not disqualified.

RATIONALE: Claimant was not fired because of the fact that he was a supervisor who was engaged in aiding and abetting union organizing activities or doing anything else inimical to his role. He was fired solely for his refusal to sign an oath of loyalty to employer. Claimant was given a peremptory order to sign a document disavowing any union organizing activity. The employer took the position such activity by Claimant would subject the employer to charges of unfair labor practices under the provisions of the Labor-Management Relations Act of 1947, as amended. Employer further took the position that as a supervisor, Claimant could be expected to sign the document and his refusal was an act of misconduct. Claimant’s status as supervisor is not the issue. The issue is the nature of what Claimant was asked to do and the circumstances under which he was asked to do it.

Digest author: Board of Review (original digest here); edited by Benjamin Tigay, Michigan Law, Class of 2018
Digest updated: January 2, 2018

 

Phillips v Employment Security Commission – 12.72

Phillips v Employment Security Commission
Digest No. 12.72

Section 421.29

Cite as: Phillips v Employment Security Comm, 373 Mich 210; 128 NW2d 527 (1964).

Court: Supreme Court of Michigan
Appeal pending: No
Claimant: Jefferson Clay
Employer: Eunice Phillips
Date of decision: June 1, 1964

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SUPREME COURT HOLDING: Failure to maintain a necessary prerequisite for employment (such as a chauffeur’s license) is a form of misconduct in connection with work.

FACTS: Claimant drove a taxicab for his employer until the state revoked his license.

DECISION: Claimant is disqualified from receiving benefits.

RATIONALE: The fact that Claimant lost his license to operate a taxicab because he violated conditions upon which the license was granted and as a result was unable to continue driving, justified his disqualification for unemployment benefits. Claimant deliberately committed the acts which resulted in the loss of his license.

Digest author: Board of Review (original digest here); edited by Benjamin Tigay, Michigan Law, Class of 2018
Digest updated: January 2, 2017