Categories
14. Disqualifications - Other

Ciaravino v. Ford Motor Co. – 14.16

Ciaravino v. Ford Motor Co.
Digest No. 14.16

Section 421.29(1)(m)

Cite as: Ciaravino v Ford Motor Co, unpublished opinion of the Macomb County Circuit Court, issued December 19, 2007 (Docket No. 2007-2858-AE).

Appeal pending: No
Claimant: Robert Ciaravino
Employer: Ford Motor Company
Docket no.: 189730H
Date of decision: December 19, 2007

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Holding: The Board’s decision that Ciaravino should be disqualified from receiving unemployment benefits was not contrary to law and was supported by substantial evidence. Ford’s evidence was sufficient to show that Ciaravino’s positive drug test for marijuana, a controlled substance, disqualified him from receiving benefits.

Facts: Robert Ciaravino worked as an employee for Ford Motor Company from October 1994 until October 7, 2005. After he tested positive for marijuana during a random urinalysis, he was discharged. Ciaravino’s specimen was taken by Beverley Tukis, a Ford full-time nurse, and the positive drug results were received by Sally Gruca, another Ford full-time nurse.

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

Rationale: Though Ciaravino denied using marijuana and said he had been taking Vicodin for a knee injury, there was no evidence that Vicodin would produce a false positive for marijuana or that the test was erroneous. Ciaravino had also signed a Reinstatement Waiver on April 4, 2005 in which he agreed to submit to random drug and alcohol testing as a condition of employment at Ford. The discharge of an individual due to ingestion of marijuana, which is considered a “controlled substance” pursuant to MCL 333.7104, 7201 and 7212, disqualifies the individual from receiving benefits. Ford also provided sufficient evidence to establish an adequate chain of custody from which a positive specimen result could be inferred.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Categories
13. Refusal of Work

Eyre v. Saginaw Correctional Facility – 13.29

Eyre v. Saginaw Correctional Facility
Digest No. 13.29

Section 421.29(1)(e)

Cite as: Eyre v Saginaw Correctional Facility, 274 Mich App 382 (2007).

Appeal pending: No
Court: Michigan Court of Appeals
Date of decision: February 27, 2007

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HOLDING: “The employer initially bears the burden of establishing that a suitable offer of work had been made, but, once the employer has met this burden, it shifts to the claimant to establish that there was good cause for refusal.”

FACTS: Claimant was laid off by her employer, Saginaw Correctional Facility. Later, Standish Maximum Correctional Facility offered her a similar position. She did not accept this offer, however, due to health concerns and the longer commuting distance. The Department of Labor initially approved her benefits, concluding that her refusal of the offer had good cause. After the employer’s objection, the Department of Labor reversed its conclusion, finding that she had turned down suitable employment without good cause. The hearing referee, the review board, and the circuit court each upheld this determination. Claimant then appealed to the Fourth District Court of Appeals  of Michigan.

DECISION: The Circuit Court decision is reversed and the case is remanded to the hearing referee for further proceedings consistent with this opinion.

RATIONALE: The provision that establishes the disqualification for refusing a suitable offer of employment without good cause, MCL 421.29(1)(e), does not establish which party should bear the burden of proof in a dispute under that rule. The court also hadn’t established binding precedent on the matter. In prior cases, however, the court dealt with the issue of disqualification more generally. Lasher v. Mueller Brass Co. held that the burden of proving disqualification fell on the employer, while Tomei v. General Motors Corp. held that this burden doesn’t always fall on the employer. The guiding principle in these cases on who should have the burden of proof is “which party is better able to provide the information needed to answer the relevant inquiries”.

The court drew from its reasoning in Tomei, which involved a plant closure and an offer to continue working at a different facility. Tomei held that the initial burden should fall on the employer to demonstrate that it had communicated a viable offer of reasonable employment, but that if an employer met this burden, it switched to the claimant to show that the decision to leave work was not voluntary. Likewise, in the present case, the court found that the initial burden should rest on the employer to show that a suitable offer of employment had been made. As above, if the employer carries this burden, the claimant must then show that her refusal was supported by good cause. The court reasoned that the employer is in better position to determine whether the employee can discharge the responsibilities of the new position, whereas the claimant will inevitably have a better understanding of personal circumstances that would provide a good cause reason to turn down an offer.

Digest author: James Fahringer, Michigan Law, Class of 2018
Digest updated: 3/27/2016

Categories
12. Misconduct

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

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

Section 421.29(1)(a)

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

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

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

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

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

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

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

Categories
13. Refusal of Work

UIA v. JDM & Associates v. Yordy – 13.28

UIA v. JDM & Associates v Yordy
Digest No. 13.28

Section 421.29(1)(e)

Cite as: JDM & Assoc v Yordy, Muskegon County Circuit Court, issued August 30, 2005 (Docket No. 05-43773-AE).

Appeal pending: No
Claimant: Sara B. Yordy
Employer: JDM & Associates
Docket no.: 176914W
Date of decision: August 30, 2005

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HOLDING: The Board’s decision to grant Yordy unemployment benefits was contrary to law. Yordy was not eligible for unemployment benefits because she failed without good cause to accept alternative suitable work offered to her by JDM.

FACTS: JDM & Associates had placed Yordy as an employee doing industrial work  at Hillite International from August 2002 to June 2003. When that job ended, JDM offered her other full-time employment doing industrial work at Whitehall Products on July 15, 2003. Yordy refused this offer because she wanted to work the second shift and the job was for the first shift. JDM gave her several other job offers which she also declined because of her desire to work second shift.

DECISION: The circuit court reversed the Board’s decision, which had found the claimant was not disqualified from receiving unemployment benefits under Section 29(1)(e).

RATIONALE: The purpose of the Act is to provide benefits to workers who are involuntarily unemployed. If the Board’s decision that Yordy was eligible for benefits were to stand, it would allow employees who were offered suitable work to turn it down and still receive benefits. Alternatively, the Board would have to preemptively decide what constitutes suitable work each time an employer offered a substitute job, which the legislature could not have intended.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Categories
13. Refusal of Work

Dombeck v. Special Mold Engineering, Inc. – 13.26

Dombeck v. Special Mold Engineering, Inc.
Digest No. 13.26

Section 421.29(1)(e)

Cite as: Dombeck v Special Mold Engineering, Inc, unpublished opinion of the Maycomb County Circuit Court, issued April 14, 2005 (Docket No. 2005-000 1-AE).

Appeal pending: No
Claimant: Max T. Dombeck
Employer: Special Mold Engineering, Inc.
Docket no.: 2005-000 1-AE
Date of decision: April 14, 2005

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HOLDING: When a claimant is offered the same position with identical pay, benefits, and work hours from an employer he previously worked for 7 months prior, after being laid off from his most recent employer, that offered position constitutes an offer of suitable employment. Further, not having adequate time to pursue alternate job options does not constitute good cause for refusal of suitable employment.

FACTS: Claimant was employed as a metal mold builder with Special Mold Engineering (SME). Claimant left SME to accept employment at another company because the new job provided day shift work, it was closer to home, it paid more money and would offer him opportunities for advancement. Claimant was laid off from employment on June 11, 2003 due to circumstances beyond his control. Claimant applied for unemployment benefits on June 12, 2003. On July 15, 2003, SME offered claimant his old job back, at the same rate of pay, with the same benefits, and with sufficient work hours. Claimant ultimately turned down the job offer because be felt “it was too soon for me to come back without being able to seek further employment with the, the new skill that I’ve learned.” Claimant was subsequently denied unemployment benefits under the refusal of suitable employment provision, MCL 421.29(1)(e)

DECISION: The MES Board’s decision was not contrary to the great weight of the evidence, finding that claimant was disqualified for unemployment benefits under MCL 421.29(1)(e).

RATIONALE: Claimant was offered suitable employment: a full-time job for which he was qualified at the same rate of pay he had been earning when he had left employment some 7 months prior, vacation pay and health benefits. Further, good cause for refusing to accept the offer of employment has not deem demonstrated. Although claimant stated he had not had enough time to find other employment, there is nothing to say that he could not have sought other employment while being employed. Claimant expressed some doubt about SME’s stability insofar as it had laid off some 20 employees and had cut hours shortly before he quit, but it is reasonable to assume that because they wanted to rehire him in July, the economic climate had changed for the better for SME, whereas, the new company had to lay off claimant due to an economic downturn, and there was no guarantee that claimant would be rehired.

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Categories
12. Misconduct

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

Categories
12. Misconduct

Smith v. DoC, MESC – 12.150

Smith v. DoC, MESC
Digest No. 12.150

Section 421.29(1)(b)

Cite as: Smith v Dep’t of Corrections, unpublished opinion of the Kent Circuit Court, issued April 1, 1996 (Docket No. 95-1797-AE).

Appeal pending: No
Claimant: Wayne E. Smith
Employer: Michigan Department of Corrections
Docket no.: 95-1797-AE
Date of decision: April 1, 1996

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HOLDING: The claimant’s sleeping on the job and insubordination, by themselves, given the claimant’s position as a prison guard, are enough evidence to support a finding of misconduct disqualifying the claimant from benefits.

FACTS: The claimant worked for the employer as a prison guard. The claimant had a history of disciplinary counseling under the employer’s progressive disciplinary policy. The claimant was eventually discharged based on two instances of alleged misconduct, which included sleeping on the job and an incident of insubordination of a supervisor that involved the slamming of a door. The claimant was later reinstated.

DECISION: The circuit court affirmed the Board of Review’s decisions, which found the claimant to be disqualified for benefits due to misconduct under Section 29(1)(b) of the MES Act and Carter v MESC, 364 Mich 538 (1961).

RATIONALE: Sleeping on the job does not always constitute misconduct in some employment environments. However, the circuit court stated that the claimant’s position as a prison guard charged with supervising a large number of prisoners put him in a position of “unusual responsibility.” See Bell v. Employment Security Comm 359 Mich 649 (1960) (a fireman in a boiler room was deemed to have a position of unusual responsibility and his sleeping on the job constituted disqualifying misconduct). Given the nature of the claimant’s responsibility, his sleeping on the job and insubordination by themselves constituted disqualifying misconduct. Further, the claimant did not fall under the conditional language of Section 29(1)(b) that provided an employee whose discharge was later reduced is not disqualified for benefits, as that conditional language only applied to discharges for intoxication and not general misconduct.

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

Categories
12. Misconduct

Ellison v. MESC – 12.138

Ellison v. MESC
Digest No. 12.138

Section 421.29

Cite as: In the matter of the claim of Ellison, unpublished opinion of the MESC, issued June 6, 1972 (Docket No. B71-1229-40927).

Appeal pending: No
Claimant: Thomas H. Ellison
Employer: Michigan Employment Security Commission
Docket no.: B71-1229-40927
Date of decision: June 6, 1972

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HOLDING: An indefinite suspension of a Claimant is equivalent to a discharge. Claimant’s disqualification for benefits should begin with the week in which the act or discharge which caused the disqualification occurred.

FACTS: This is an appeal from a decision issued on May 1, 1972. Claimant originally appealed a February 23, 1972 holding that Claimant should be disqualified from benefits under Section 29(9) of the Act for the period from December 15, 1971 through December 31, 1971; disqualified from benefits under Section 29(1)(b) of the Act for the week ending on January 1, 1972; and subject to requalification under Section 29(3) of the Act.

DECISION: The Appeal Board affirms the February 23, 1972 holding, except the part of the decision that relates to the disqualification under Section 29(9), as well as the dates of separation and discharge. The Appeal Board modifies the decision to establish that Claimant was given an indefinite suspension for misconduct either directly or indirectly connected with the work, and then discharged on December 31, 1970. Claimant was discharged following his last day of work on December 15, 1970 and is disqualified for benefits for the week ending in December 18, 1970.

RATIONALE: When an individual is given an indefinite suspension, it is tantamount to a discharge, and the disqualification should begin with the week in which the act or discharge which caused the disqualification occurred. The disqualification will continue until the individual requalifies as provided under Section 29(3) of the Act.

Digest Author: Winne Chen, Michigan Law, Class of 2017
Digest Updated: 1/7/2016