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11. Leaving to Accept

Mullins v. Golden Home Health Care Agency – 10.108

Mullins v. Golden Home Health Care Agency
Digest No. 10.108

Section 421.29(1)(a)

Cite as: Mullins v Golden Home Health Care Agency, unpublished opinion of the Wayne County Circuit Court, issued May 27, 2005 (Docket No. 05-503476-AE).

Appeal pending: No
Claimant: Shirley Mullins
Employer: Golden Home Health Care Agency
Date of decision: May 27, 2005

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HOLDING: A claimant who was employed in two part-time jobs concurrently and subsequently quit one in order to accept a full-time job with the other employer is not disqualified from receiving benefits if she subsequently loses her job with the other employer for a non-disqualifying reason.   

FACTS: Claimant was working two different jobs with Golden Home Health and Walmart, concurrently. Golden Home Health told her she would be given additional clients which would require her to take on additional travel without reimbursement. Additionally, Claimant learned of a full time opportunity with Walmart that would entail higher pay, benefits, and no travel. Claimant decided to leave her employment with Golden Home Health to pursue the full time opportunity with Walmart. After leaving this position, Claimant lost her full time job with Walmart and sought to collect unemployment benefits. Claimant was denied.

The ALJ found Claimant was not disqualified for benefits. The MCAC reversed and found Claimant disqualified for benefits.

DECISION: The Circuit Court reversed the decision of the MCAC. Claimant is not disqualified for benefits.

RATIONALE: Per Dickerson v Norrell Health Care, Inc, unpublished opinion of the Kent County Circuit Court, issued September 21, 1995 (Docket No. 95-1806-AE), a claimant who had simultaneous full-time and part-time employment, who left the part-time job for disqualifying reasons and later unexpectedly lost the full-time job for non-disqualifying reasons is not disqualified from receiving benefits under Section 29(1)(a) of the Act.

Since, when Claimant quit her job with Golden Home Healthcare, it only resulted in one less job, and not total unemployment, Claimant’s decision to quit her job with Golden Home Health was not disqualifying under Section 29(1)(a) of the Act.

Digest author: Cydney Warburton, Michigan Law, Class of 2017
Digest updated: 10/31/2017

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10. Voluntary Leaving

Hilton v. Meijer Stores Limited – 10.93

Hilton v. Meijer Stores Limited
Digest no. 10.93

Section 29(1)(a)

Cite as: Hilton v Meijer Stores Limited, unpublished opinion of the Michigan Employment Security Board of Review, issued August 31, 2004 (Docket No. B2003-09139).

Appeal pending: No
Claimant: Akira Hilton
Employer: Meijer Stores Limited
Docket no.: B2003-09139-170939
Date of decision: August 31, 2004

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BOARD HOLDING: A claimant who has simultaneous employment with a part-time employer and a full-time employer, who leaves her part-time job because it conflicts with the full-time job, is disqualified under Section 29(1)(a) because her leaving was not attributable to the part-time employer.

FACTS: Claimant worked for Meijer on a part-time basis, and simultaneously worked full-time for Wallside Windows. Claimant voluntarily left her employment with Meijer because it conflicted with her full-time employment. Ten days later, Wallside Windows discharged the claimant for non-disqualifying reasons.

DECISION: The claimant is disqualified from receiving benefits under Section 29(1)(a).

RATIONALE: In Dickerson v Norrell Health Care, Inc, unpublished opinion of the Kent Circuit Court, issued September 21, 1995, (Docket No. 95-1806-AE)(Digest 10.81), the circuit court addressed what presents itself as a gross inequity: that although Claimant had been laid off from a full-time job for non-disqualifying circumstances, Claimant was nevertheless ineligible for benefits solely because Claimant had just voluntarily left an unrelated part-time job. The court’s conclusion that a claimant could not be found to have “left employment” unless her leaving resulted in total unemployment is at odds with the plain and unambiguous language of the statute. The court also ignores that the employer the claimant quit faces charges to its account and tax rate increases even though it in no way contributed to the job separation. Additionally, if such a claimant quit only one of her jobs, she could receive unemployment benefits provided she still worked at least part-time and thus was not totally unemployed. Then the former full-time employer’s account would be charged for the benefits paid, and the current part-time employer would also be charged for a portion of the benefits, even though neither employer in any way contributed to the claimant’s job separation. The Board notes that circuit court decisions are not binding precedent. Due to the potential unintended consequences of Dickerson, if a change in the statutory language is necessary, it should come from the legislature.

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

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10. Voluntary Leaving

Lakeshore Public Academy v Scribner – 10.91

Lakeshore Public Academy v Scribner
Digest no. 10.91

Section 29(1) (a)

Cite as: Lakeshore Pub Academy v Scribner, unpublished opinion of the Oceana Circuit Court, issued May 10, 2004, (Docket No. 03-004110-AE).

Appeal pending: No
Claimant: Patricia A. Scribner
Employer: Lakeshore Public Academy
Docket no.: B2003-06865-RO1-170206
Date of decision: May 10, 2004

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CIRCUIT COURT HOLDING: Claimant established good cause for leaving. Employer did not complete the process of handling the claimant’s complaint by communicating to her that it was investigated and what action would or would not be taken in response. The claimant reasonably concluded the employer was unable or unwilling to discipline a co-worker who violated employer’s rule against threatening behavior.

FACTS: Claimant worked as a teacher. Another teacher and his wife, confronted claimant in her classroom regarding her discipline of their child on the previous day. Claimant testified the other teacher put his finger in her face, glared at her, and made intimidating comments. This happened as students were entering the classroom. Claimant reported this incident to the employer, and indicated she could not work under those conditions. Employer had a policy prohibiting threatening behavior toward staff which provided that if a threat occurred, the perpetrator would be disciplined. Employer’s witness investigated the incident, but could not reconcile differing statements from claimant and the other teacher, so the teacher was not disciplined. After not hearing anything more from the administration, claimant resigned a couple weeks later.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: “The ALJ’s decision turned on the failure of the Academy to complete the normal and expected handling of an employee’s grievance by communicating to the employee the results of the investigation and what, if any, action would be taken in response to the complaint.” It is the manner in which employer handled the complaint, not the failure to impose discipline, that leads to a finding of non-disqualification.

Digest Author: Board of Review (original digest here)
Digest Updated: 
11/04

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10. Voluntary Leaving

Human Capability Corp v Carson – 10.96

Human Capability Corp v Carson
Digest no. 10.96

Section 29(1)(a)

Cite as: Human Capability Corp v Carson, unpublished opinion of the Wayne Circuit Court, issued April 6, 2004, (Docket No. 03-331656-AE).

Appeal pending: No
Claimant: Barbara D. Carson
Employer: Human Capability Corporation
Docket no.: B2003-02940-169363
Date of decision: April 6, 2004

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CIRCUIT COURT HOLDING: Where the employer unilaterally changed the terms and conditions of employment by altering the employee handbook to include non-competition and prohibition of outside employment provisions, the claimant had good cause for voluntary leaving.

FACTS: In January 2002, employer updated the policies contained in its 1998 employee handbook. The 2002 employee handbook contained a non-competition provision and prohibited outside employment. The claimant refused to sign and was separated from employment. The 1998 employee handbook prohibited outside work on employer’s time, and lacked an express provision barring work with a competitor after separating from employer’s employ.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: The employer did not dispute that claimant left work voluntarily. The employer asserted claimant lacked good cause for leaving because claimant was an at-will employee, who lacked an employment contract or a legitimate expectation that employer would not alter the terms and conditions or employment. The court held that employer’s argument was misplaced – that claimant’s employment status and employer’s right to alter the terms and conditions of work would be pertinent if the enforceability of a common-law employment contract were at issue. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980). The court found that Toussaint and its progeny do not govern administrative proceedings when the issue is whether the claimant left with good cause attributable to employer under Section 29(1)(a) of the Act.

The addition of the moonlighting prohibition and anti-compete clause were a substantial and material change in the terms of employment.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/04

Categories
10. Voluntary Leaving

Mitchell v Wal-Mart Associates – 10.92

Mitchell v Wal-Mart Associates
Digest no. 10.92

Section 29(1)(a)

Cite as: Mitchell v Wal-Mart Assoc, unpublished opinion of the Allegan Circuit Court, issued November 22, 2002 (Docket No. 02-31816-AE).

Appeal pending: No
Claimant: Denise M. Mitchell
Employer: Wal-Mart
Docket no.: B2001-15958-RO1-162871W
Date of decision: November 22, 2002

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CIRCUIT COURT HOLDING: A claimant who voluntarily leaves part-time employment to save her full-time employment is not disqualified under Section 29(1)(a) if she is subsequently laid-off by the full-time employer.

FACTS: The claimant worked part-time for Wal-Mart, and simultaneously worked for a full-time employer. She was working more than 65 hours/week total. Claimant left her part-time employment due to conflicts with her work schedule with her full-time employer. The full-time employer unexpectedly laid her off the following day.

DECISION: The claimant is not disqualified pursuant to Section 29(1)(a).

RATIONALE: “Given the conflict in work schedules between the two jobs…,Wal-Mart’s actions of staffing and continuing operations at times threatening to the claimant’s full-time job would cause a reasonable and average person to choose between the two.” Claimant reasonably chose her full-time job. The court found non-binding support from another circuit and two other states in Dickerson v Norrell Health Care, Inc, unpublished opinion of the Kent Circuit Court, issued September 21, 1995 (Docket No. 95-1806-AE); Merkel v HIP of New Jersey, 573 A2d 517 (1990); and, Gilbert v Hanlon 335 NW2d 548 (1983). In those cases, “the courts found that technical interpretations of “work” worked an injustice to the purpose and intentions of each state’s respective law by equating one’s reasonable decision to leave a part-time job with the unreasonable quest to leave employment altogether.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Categories
10. Voluntary Leaving

Dushane v Bailey T L DDS – 10.95

Dushane v Bailey T L DDS
Digest no. 10.95

Section 29(1)(a)

Cite as: Dushane v Bailey T L DDS, unpublished opinion of the Muskegon Circuit Court, issued February 6, 2001 (Docket No. 00-40206-AE).

Appeal pending: No
Claimant: Tracy L. Dushane
Employer: Bailey T L, DDS
Docket no.: B1999-13378-154400
Date of decision: February 6, 2001

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CIRCUIT COURT HOLDING: The nature of the separation determines whether the claimant is laid off or voluntarily quit, not the labels used by the parties. A layoff is a separation of an employee from employment (a) at the will of the employer, (b) due to a lack of work, and (c) which is at least initially understood by the employer and the employee to be temporary.

FACTS: Claimant approached the employer and asked to be laid off so that she could look for other employment. Employer had work available for claimant. Claimant stated in her application for benefits that she was “laid off due to lack of work.” Claimant admitted in her testimony that it was her choice to leave the job.

DECISION: Claimant is disqualified for voluntary leaving.

RATIONALE: The question to be resolved is whether or not the facts of this matter demonstrate an actual layoff of the claimant as defined by Michigan courts. The Board is not “bound by the words used by the employer and employee to describe the separation.” IM Dach Co v ESC, 347 Mich 465, 489 (1956). The Court of Appeals in MESC v General Motors Corp, 32 Mich App 642, 647 (1971) held that, “A layoff is a termination of employment at the will of the employer, without prejudice to the worker. Layoffs may be due to lack of orders, technical changes, or failure of flow of parts or materials to the job, as needed.” “A ‘layoff’, as distinguished from a discharge, contemplates a period during which a working man is temporarily dismissed . . ..” MESC v General Motors Corp, supra, at 648. In Chrysler Corp v Washington, 52 Mich App 229, 234-235 (1974), the court defined “layoff” as, “To cease to employ (a worker) usually temporarily because of slack in production and without prejudice to the worker usually distinguished from a fire.” In this matter, the claimant admitted she asked for a “layoff” and said she would leave and not come back.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/04

Categories
10. Voluntary Leaving

Spence v The Dakota Corp – 10.94

Spence v The Dakota Corp
Digest no. 10.94

Section 29(1)(a)

Cite as: Spence v The Dakota Corp, unpublished opinion of the Isabella Circuit Court, issued October 30, 2000 (Docket No. 00-1666-AE).

Appeal pending: No
Claimant: Edwin Spence
Employer: The Dakota Corporation
Docket no.: B1999-04176-152773
Date of decision: October 30, 2000

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CIRCUIT COURT HOLDING: A truck driver required to violate USDOL regulations to meet the employer’s schedule, but who notifies the employer about the potential violations, has good cause attributable to the employer for a voluntary leaving if the employer fails to take remedial action.

FACTS: Claimant worked for the employer as a truck driver for three years. Claimant drove a minimum of seven hours between Grand Haven, Michigan and Windsor, Ontario, delivering five loads of sand in four days. Claimant also commuted two and a half hours one-way to work, and spent four hours loading and unloading sand. The driving schedule resulted in claimant getting little or no sleep. Claimant falsified his travel logs to meet USDOT regulations. He complained to the employer that the schedule was taxing, illegal, compromised health and safety of the public, and that another employee also falsified logs. Claimant left after the employer failed to alter his schedule. Later the USDOT fined the employer $2100 for violations, including the false report of records of duty status.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: Claimant realized he was harming his health working in an illegal manner, violating USDOT regulations, and if he were caught he would be individually responsible for the fine. While claimant repeatedly informed employer that employer was forcing him to drive illegally and that he falsified his logs to maintain an appearance of legality, employer insisted the schedule was legal and refused to review claimant’s documentation. Employer told claimant he was on his own if he was caught with falsified logs. Employer should have known the schedule could not be done legally.

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Categories
10. Voluntary Leaving

Simpson v MBS Commerical Printers, Inc – 10.97

Simpson v MBS Commerical Printers, Inc
Digest no. 10.97

Section 29(1)(a)

Cite as: Simpson v MBS Commercial Printers, Inc, unpublished opinion of the Bay Circuit Court, issued August 25, 2000 (Docket No. 99-3129-AE-B).

Appeal pending: No
Claimant: Darren H. Simpson
Employer: MBS Commercial Printers, Inc.
Docket no.: B98-00846-148280W
Date of decision: August 25, 2000

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CIRCUIT COURT HOLDING: A death threat made by employer, coupled with past abuse from the employer, and the employee’s reasonable belief that employer was capable of acting on the threat, constitutes good cause attributable to the employer for voluntary leaving.

FACTS: On the claimant’s last day, he had an argument with the owner, which the owner initiated. Claimant testified the owner threatened to kill him, which the employer denied. The ALJ failed to make a credibility finding. Claimant had difficulty with the owner in the past – physical and verbal abuse by the owner, and a physical assault by the owner’s brother. The owner owned guns; claimant believed he would carry out the death threat and later filed a police report. The claimant worked the balance of his shift before leaving.

DECISION: The claimant is not disqualified from receiving benefits.

RATIONALE: Claimant finished his shift on Friday, and notified employer that he quit the following Monday. Instead of provoking employer in an environment employer controlled, claimant opted to notify employer of his leaving at a later time, allowing for a period of “cooling down.” Claimant chose the prudent course, which in no way diminishes the seriousness of employer’s threat. Good cause exists where the circumstances which prompted the claimant’s departure would have caused an average, reasonable, and otherwise qualified worker to leave. Carswell v Share House, Inc, 151 Mich App 392 (1986). The employer made a death threat. Employees should not have to labor under the threat of murder.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/04

Categories
10. Voluntary Leaving

Sherwood v Michigan Bell Telephone Co – 10.90

Sherwood v Michigan Bell Telephone Co
Digest no. 10.90

Section 29(1)(a)

Cite as: Sherwood v Michigan Bell Tel Co, unpublished opinion of the Wayne Circuit Court, issued October 28, 1999 (Docket No. 99-914657AE).

Appeal pending: No
Claimant: Thomas Sherwood
Employer: Michigan Bell Telephone Company
Docket no.: B98-07068-149398
Date of decision: October 28, 1999

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CIRCUIT COURT HOLDING: Claimant left employment voluntarily without good cause attributable to employer because he did not apply for a leave of absence even after he received a letter from the employer warning him his employment was about to be terminated. Turning in doctor’s notes was not sufficient action to maintain employment.

FACTS: Claimant was injured on the job and was off on a medical LOA from August 1997 to January, 1998, at which time he was assigned to The Toledo office, a 50 mile commute one-way. Claimant was suffering back pain associated with the injury. He provided the employer with doctor’s notes limiting his driving distance and time because driving aggravated his back pain. After failing to report to work for several days, the claimant was terminated. He had not applied for a medical leave of absence. Employer had sent the claimant a warning letter (of impending termination) but the claimant ignored it.

DECISION: The claimant is disqualified for voluntary leaving. Circuit court affirmed Board of Review in its reversal of the Referee decision, albeit for different reasons.

RATIONALE: Claimant initiated his separation by failing to report to work and failing to apply for a medical leave of absence to cover his absences. Claimant had valid medical restrictions but failed to demonstrate that they prevented him from reporting to work.

Digest Author: Board of Review (original digest here)
Digest Updated:
7/99

Categories
10. Voluntary Leaving

Cooper v Mount Clemens Schools – 10.89

Cooper v Mount Clemens Schools
Digest no. 10.89

Section 29(1)(a)

Cite as: Cooper v Mount Clemens Schools, unpublished opinion of the Barry Circuit Court, issued December 29, 1998 (Docket No. 98-194-AE).

Appeal pending: No
Claimant: Cyntheal Cooper
Employer: Mount Clemens Schools
Docket no.: B97-12037-146470
Date of decision: December 29, 1998

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CIRCUIT COURT HOLDING: A person who “resigns” after losing their job to a layoff has not voluntarily terminated their employment.

FACTS: On April 24, 1997 the claimant received a notice she would be laid off at the end of the contract year. On April 28, 1998 the claimant submitted a letter to the employer that indicated the claimant would not return to work for the employer in the next school year.

DECISION: The claimant is not disqualified for voluntary leaving.

RATIONALE: The Board of Review erred by finding the claimant left her position voluntarily. Claimant could not leave a job she already lost. “A person who `resigns’ after losing their job to a layoff has not voluntarily terminated their employment.”

Digest Author: Board of Review (original digest here)
Digest Updated:
7/99