Mendoza v. Aerotek, Inc. – 12.159

Mendoza v. Aerotek, Inc.
Digest No. 12.159

Section 421.29(1)(m)

Cite as: Mendoza v Aerotek, Inc, unpublished opinion of the Michigan Compensation Appellate Commission, issued August 18, 2017 (Docket No. 17-004211-252718W).

Court: Michigan Compensation Appellate Commission
Appeal pending: No
Claimant: Pedro Mendoza
Employer: Aerotek Incorporated
Date of decision: August 18, 2017

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HOLDING: The Michigan Compensation Appellate Commission (MCAC) reversed an Administrative Law Judge (ALJ) order finding Claimant disqualified for benefits under the “testing positive for drug use” provision of Section 29(1)(m).  The Commission held that under Ashford v Unemployment Compensation Commission, 328 Mich 428, 433 (1950), the employer did not meet its burden of proof where it failed to appear, and thus no prima facie case was established to prove the misconduct.  Therefore, the Commission reversed the order and found Claimant eligible for benefits.

FACTS:  The Agency found Claimant disqualified for benefits under the misconduct provision of MES 421.29.  Here, Claimant tested positive for drug use on an employer-administered drug test and thus was found ineligible under the illicit drug use provision of Section 29(1)(m).  At the hearing, the only participants present were Claimant’s attorneys and the judge.  Despite the employer’s lack of appearance, the judge affirmed the Agency’s finding of disqualification and held Claimant ineligible for benefits.  The MCAC reversed on appeal.

DECISION: The Commission reversed the ALJ order and found Claimant not disqualified for benefits under Section 29(1)(m).

RATIONALE: The Commission found that because the employer had the burden of proof to establish misconduct, its failure to appear at Claimant’s hearing and present evidence to support a finding of misconduct failed to meet the burden of proof.  Because no prima facie showing of misconduct could be established without the employer’s presence, the Commission held that the ALJ erred in affirming the Agency’s finding of misconduct.  Further, Claimant had no burden of proof in this case, and had only the obligation to prosecute his appeal under Ashford.  Because the employer failed to meet its burden of proof by not appearing at the hearing, and because Claimant had no burden of proof under Section 29(1)(m), the order was reversed and the Commission found Claimant not disqualified for benefits.

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: January 2, 2018

 

Lawrence v Michigan Unemployment Insurance Agency – 16.96

Lawrence v Michigan Unemployment Insurance Agency
Digest No. 16.96

Section 421.33

Cite as: Lawrence v Mich Unemployment Ins Agency, 320 Mich App 422 (2017).

Court: Court of Appeals
Appeal pending: No
Claimant: Suzanne Lawrence
Employer: Bloomfield Hills Country Club
Docket No.: 332398
Date of decision: July 11, 2017

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COURT OF APPEALS HOLDING: The claimant does not have the burden to prove that she did not receive benefit checks.

FACTS: Claimant worked for a country club and was laid off for the winter season. Claimant  was paid vacation time for the first weeks of the lay off. The Agency alleged that Claimant received benefits during those weeks and is required to pay restitution ($158). Claimant denied receiving benefits during those weeks. Claimant appealed the lower decisions as misconstruing the case: the lower decisions referred to eligibility, but Claimant argued that the case is about whether she received any payment during the ineligible weeks.

DECISION: Reversed. The courts focused on the wrong issue: it was not whether Claimant was eligible but rather whether she received payment on the ineligible weeks; and there was error in affirming MCAC and in its factual determinations, misapplying the substantial evidence test.

RATIONALE: The ALJ “bewilderingly” focused consideration on eligibility during the weeks Claimant “conceded she was ineligible.” (Emphasis in original.) The ALJ decision lacks legal grounds because eligibility was not at issue. MCAC “completely missed the mark” by not overturning because the issue on appeal was whether the ALJ addressed the appropriate issue.

The circuit court erred when when it determined that MCAC’s decision was supported by competent, material, and substantial evidence. The notices of restitution and the determination were “not proof that the MUIA issued an overpayment, in any amount, to [Claimant], and to accept them as such would defy common sense.” Without a scintilla of evidence to support the payments, the circuit court erred by affirming MCAC’s decision as supported by competent, material, and substantial evidence. Claimant did not have the burden to establish that she did not receive benefits as alleged. Claimant would need to rebut evidence by the Agency, but it is not her burden in the first instance. This avoids Hodge because the circuit court did not need to substitute its judgment on credibility for the ALJ’s; the ALJ simply did not make a contrary factual finding.

Digest author: Benjamin Tigay, Michigan Law, Class of 2018
Digest updated: January 2, 2018

 

UIA v. Tear – 3.09

UIA v. Tear
Digest No. 3.09

Section 421.46

Cite as: Unemployment Insurance Agency v Tear, unpublished opinion of the State of Michigan Court of Appeals, issued December 10, 2015 (Docket No. 13-001038-AE).

Appeal pending: No
Claimant: Rachel Tear
Employer: N/A
Date of decision: December 10, 2015

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HOLDING: Claimant is ineligible for unemployment benefits under MCL 421.46. The Circuit Court’s decision affirming that Claimant is eligible for unemployment benefits is reversed. The case is remanded for the entry of the order upholding the Agency’s denial of Claimant’s claim for benefits.

FACTS: Claimant was discharged from her job and subsequently filed a claim for unemployment benefits. The Unemployment Insurance Agency (“Agency”) denied her claim and found that she could not establish a benefit year under MCL 421.46. At the administrative law hearing, the ALJ reversed the Agency’s finding and found that a benefit year had been established because “Claimant’s high quarter wages were $2,883.00.”

DECISION: The ALJ’s finding that Claimant was paid $2,883.00 in a completed quarter is not supported by substantial and competent evidence. The Circuit Court’s conclusion that Claimant was paid more than $2,871.00 in a completed quarter is clearly erroneous.

RATIONALE: The court referred to the definition of “benefit year” in MCL 421.46(c), the definition of a “base period” in MCL 421.45, and the definition of “calendar quarter” in MCL 421.47 to determine Claimant’s eligibility for unemployment benefits.

Under those provisions, Claimant was required to have been paid at least $2,871.00 in at least one completed calendar quarter in the first four of the last five completed calendar quarters before filing her claim. Claimant would need to meet that requirement to establish a benefit year. In this case, Claimant only made $1,958.30 for the entire calendar year.

Although MCL 421.45 provides an alternative base period if a claimant cannot meet the above requirement, Claimant in this case still did not earn enough to establish a base period under MCL 421.45.

Digest author: Rita Samaan, Michigan Law, Class of 2017
Digest updated: 10/31/2017

 

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

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, unpublished opinion of the Wayne Circuit Court, issued January 24, 2012 (Docket 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

Ducharme v Providence Hospital – 12.155

Ducharme v Providence Hospital
Digest no. 12.155

Section 29(1)(b)

Cite as: Ducharme v Providence Hosp, unpublished per curiam opinion of the Court of Appeals, issued March 7, 2006 (Docket No. 257231).

Appeal pending: No
Claimant: Joanne H. Ducharme
Employer: Providence Hospital
Docket no.: 03-051271-AE
Date of decision: March 7, 2006

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COURT OF APPEALS HOLDING: After previously demonstrating the ability to conform to an employer’s standards, a claimant’s termination for excessive absences may constitute disqualifying misconduct when the employer has no reasonable way to discover the relevant facts behind the absences and no legitimate explanation is offered by the claimant.

FACTS: Claimant is slightly mentally retarded and worked for Employer for 22 years. Claimant received about 26 unexcused absences over a five-month period, and Employer met with Claimant and her family to discuss the ramifications of accumulating more unexcused absences. Employer made an effort to work with Claimant before ultimately releasing her due to her long tenure with the company, however after accumulating four additional unexcused absences over a two-month period, Claimant was terminated. Claimant’s brother and legal guardian testified that Claimant sometimes became confused about her work schedule, and that most absences were due to a breathing problem Claimant suffers from. A reason for the final four unexcused absences was not provided.

After a determination that Claimant was not disqualified due to misconduct, the ALJ reversed, finding the evidence insufficient to conclude Claimant’s retardation was the cause of her attendance infractions. A split Board of Review affirmed, the dissent instead opining that Claimant’s actions were not “wanton or willful disregard” of Employer’s interests, but instead due to “inability or incapacity.”

DECISION: The decision of the Circuit Court affirming Claimant’s disqualification from benefits due to misconduct is affirmed as the court did not clearly err in finding the Board of Review’s decision was supported by the evidence and not contrary to law.

RATIONALE: It is generally the employer’s burden to demonstrate disqualification for benefits. In the case of termination for excessive absences, disqualifying misconduct must be shown with evidence that the absences were not beyond the employee’s control or otherwise with good cause. However, if the relevant facts are entirely in the hands of the claimant and for all practical purposes cannot be discovered by the employer, the claimant bears the burden to provide a legitimate explanation for the absences.

Here, reasonable minds could differ as to whether Claimant provided sufficient evidence to provide a legitimate explanation for her absences. Plaintiff was able to work for Employer for 22 years before termination, suggesting the general ability to conform to Employer’s expectations, and the explanations provided as to the reason for some of her absences does not necessarily suffice to legitimately explain the particular absences resulting in Claimant’s termination. The standard of review is clear error, and the Circuit Court did not clearly err.

Digest Author: Jack Battaglia
Digest Updated: 9/14

Riccardi v Oakland General Health Systems – 12.154

Riccardi v Oakland General Health Systems
Digest no. 12.154

Section 29(1)(b)

Cite as: Riccardi v Oakland Gen Health Systems, unpublished per curiam opinion of the Court of Appeals, issued January 10, 2006 (Docket No. 256164).

Appeal pending: No
Claimant: Carol Ann Riccardi
Employer: Oakland General Health Systems / St. John Oakland Hospital
Docket no.: 04-050903-AE
Date of decision: January 10, 2006

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COURT OF APPEALS HOLDING: A finding of statutory misconduct due to excessive absenteeism or tardiness cannot be made if there is no evidence that any of the absences were not for good cause.

FACTS: Claimant’s accumulation of absences for various reasons led to her termination under Employer’s “no-fault” attendance system which set forth a schedule detailing how escalating amounts of absenteeism would lead to increasingly severe penalties. The majority of the absences were documented as due to illness, doctor’s visits, car trouble, or problems at home. Claimant was initially granted benefits under the reasoning that she was not discharged for a deliberate disregard of her employer’s interests. This determination was overruled by the ALJ, and affirmed by the Board of Review and the Circuit Court, finding that Claimant had committed disqualifying misconduct under the reasoning that her absences were excessive, she was aware of the attendance policy that could lead to dismissal, and she “made very little effort” to correct her attendance problem.

DECISION: The orders of the below tribunals are reversed, and the initial determination finding Claimant entitled to benefits is reinstated.

RATIONALE: Absenteeism and tardiness for reasons that are not outside a claimant’s control may constitute statutory misconduct. However, misconduct requires a determination that the claimant’s attendance issues were without good cause, and it is the employer’s burden to show this.

Here, no below tribunal made any factual findings discrediting Claimant’s explanations for her absences, rather only finding her disqualified due to the excessive nature of her absences and taking no remedial action despite knowing that her job was in jeopardy. Without a finding that her absences were not for good cause, the burden required to establish disqualifying misconduct was not met. The below tribunals erred in finding statutory misconduct.

Digest Author: Jack Battaglia
Digest Updated: 9/14

Coppens v Hayes – 17.22

Larry Coppens, d/b/a Strawberry Tree & Landscaping v. Matthew L. Hayes
Digest No. 17.22

Section 421.41; Section 421.42

 

Cite as: Coppens v Hayes, unpublished opinion of the Oakland County Circuit Court, issued October 12, 2005, (Docket No. 05-064176-AE).

Appeal pending: No
Claimant: Matthew L. Hayes
Employer: Larry Coppens, d/b/a Strawberry Tree & Landscaping
Date of decision: October 12, 2005

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HOLDING: The Board of Review’s decision is affirmed. The claimant is eligible for benefits.

FACTS: The claimant did yard work for employer until he was laid off when the employer’s machinery broke down. The UIA found the claimant was a covered employee under the Act. The ALJ agreed and the Board of Review affirmed.

DECISION: Employment relationship was reasonably found because the economic reality test and the definition of employer under MCL 421.41(1)(ii) were both satisfied.

RATIONALE: The Board’s decision was properly supported by evidence and was justified in setting the burden of proof on the claimant. Under the economic reality test’s eight factors, the Board was supported in its finding of an employment relationship because: (1) the employer didn’t incur contractual liability for terminating the claimant; (2) the claimant’s work formed an integral part of the employer’s business; (3) whether the claimant dependent of the job as a means of support was not in evidence and therefore did not factor into the analysis; (4) the employer supplied all the claimant’s work ; (5) there was no evidence the claimant held himself out to the public as ready to perform the relevant job duties; (6) there was not evidence whether the work was customarily performed by an independent contractor so this factor did not factor into the analysis; (7) the employer controlled the claimant’s work by telling him how he would be paid, when to report to work, and what to do; and (8) the purpose of the Act and deference to the agency supported the finding of the employment relationship.

The court also found an employment relationship was present under the definition of “employer” under MCL 421.41(1)(ii)  since the employer paid a total remuneration of $1000 or more per year.

Digest author: Austin L. Webbert, Michigan Law, Class of 2017
Digest updated: October 25, 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

 

Hoag v. Emro Marketing – 12.141

Hoag v. Emro Marketing
Digest No. 12.141

Section 421.29(1)(b)

Cite as: Hoag v Emro Mktg, unpublished opinion of the Maycomb County Circuit Court, issued April 9, 1999 (Docket No. 98-4783-AE).

Appeal pending: No
Claimant: Jeffery A. Hoag
Employer: Emro Marketing
Docket no.: 98-4783-AE
Date of decision: April 9, 1999

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HOLDING: Recurrences of negligent behavior do not per se suggest an intentional and substantial disregard of an employer’s interests and thus cannot per se establish misconduct.

FACTS: Appellant worked as an assistant manager for Emro Marketing and was discharged for cash drawer shortages. Appellant was initially determined to be not disqualified from receiving benefits. A further redetermination also found Appellant not disqualified. A hearing in front of an ALJ held the same

finding that the employer had not met its burden of proof in establishing appellant was discharged for reasons which would constitute misconduct. Further, the ALJ found that the appellant’s reporting of the shortages which allocated the blame to himself,  coupled with his signing of the respective warnings from his employer did not constitute misconduct. The Michigan Employment Security Board of Review, on appeal, found that the doctrine of res ipsa loquitur applies in this case. The Board concluded that if appellant did not commit theft, then he was obviously negligent. Further, the Board found misconduct was established by such reoccurrences as to show an intentional and substantial disregard of the employer’s interests or of the employee’ s duties and obligations to the employer

DECISION: The Court finds the Board acted contrary to law when it determined appellant’s recurrent negligence rose to the level of disqualifying misconduct.

RATIONALE: The court found that the Board’s decision was contrary to law in that the facts found did not constitute the legal definition of misconduct. This is because the Board’s use of res ipsa loquitur was in error. When determining if misconduct exists,  the legal question is not merely whether appellant was negligent, but whether that negligence rises to the level of disqualifying misconduct. Negligent recurrences do not per se suggest an intentional and substantial disregard of an employer’s interests, thus, they do not amount to misconduct. Here the employer bears the burden of proof in showing appellant’s recurrent negligence showed an intentional and substantial disregard of the employer’s interest.

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