04. Total or Partial Unemployment

Newman v River Rouge Schools – 4.39

Newman v River Rouge Schools
Digest no. 4.39

Section 31, 48(2)

Cite as: Newman v River Rouge Schools, unpublished opinion of the Court of Appeals, issued July 24, 2014 (Docket No. 314033).

Appeal pending: 
Claimant: Joel A. Newman, et al.
Employer: River Rouge Schools
Docket no.: 12-005774-AE
Date of decision: July 24, 2014

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HOLDING: A rehiring agreement that agrees to provide back pay designated to a specific date may make a claimant ineligible to receive unemployment benefits beginning on that date, and any language in the agreement requiring claimant to reimburse the UIA for benefits received as of that date may be valid notwithstanding Section 31.

FACTS: Claimant worked for Employer as a teacher. At the end of the 2008/2009 school year, Claimant was sent a reasonable assurance letter for the upcoming year, but later in the summer was laid off effective August 6, 2009. Claimant’s last pay date was August 14, 2009, and Claimant immediately filed for unemployment benefits beginning the next day. Claimant collected benefits for the weeks ending August 22 and August 30, 2009, and the first few weeks in September.

After the Claimant’s union filed an unfair labor practice charge against Employer, Employer called Claimant back to work and agreed to provide Claimant with back pay. The agreement stipulated that the Claimant must reimburse the Agency “for any unemployment benefits that [he] received after what would have been the first day that the [Claimant was] scheduled to report for work.” Disagreement as to when the 2009/2010 school year began led to a dispute as to when the Employer-provided back pay made him whole, whether there was a period of time that Claimant was eligible for benefits, and whether Claimant must reimburse unemployment benefits received.

DECISION: The decision of the Circuit Court is affirmed, finding that Claimant must reimburse UIA for unemployment benefits received beginning the week ending August 22, 2009.

RATIONALE: There is no dispute that Claimant had the lawful right to collect benefits during the time he was laid off. However, in the agreement between Employer and Claimant, the back pay provided to Claimant was designated as dating back to August 15, 2009, which is the date Claimant allegedly began his period of unemployment. Because substantial evidence shows that both parties agreed that this date was “the beginning of their contract term” and back pay was calculated based on that date, Claimant does not qualify as unemployed as of that date. Additionally, this designation is lawful under the circumstances because nothing in Section 48(2) prohibits this practice, and Claimant does not argue that this back pay was insufficient to make him whole.

Claimant further argues that the agreement was invalid under Section 31 to the extent that Claimant agreed to waive or relinquish his rights to unemployment benefits properly received during the layoff period. This Court agrees that the agreement violates Section 31 on its face and is not valid to require Claimant to relinquish unemployment benefits properly received. However, as explained above, the agreement’s other terms find Claimant to be ineligible for benefits beginning August 15, 2009, and therefore it is not improper for Claimant to be required to relinquish unemployment benefits improperly received.

Digest Author: Jack Battaglia
Digest Updated: 8/14

16. Procedures/Appeals

Pena v. Adecco CS Inc. – 16.80

Pena v. Adecco CS Inc.
Digest No. 16.80

Section 421.33

Cite as: Pena v Adecco SC Inc, unpublished opinion of the Ottawa County Circuit Court, issued January 12, 2007 (Docket No. 06-55080-AE).

Appeal pending: No
Claimant: Reyes Pena
Employer: Adecco CS Inc.
Date of decision: January 12, 2007

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HOLDING: Under MCL 421.33, a party who fails to attend an ALJ hearing waives those rights which might have been exercised at a hearing, even if a new issue that was not listed on the notice of hearing is presented during the hearing.

FACTS: Claimant did not attend the ALJ hearing against Adecco CS Inc. The notice of hearing for that ALJ hearing stated that the issue to be presented at the hearing was “temporary help firm” pursuant to MCL 421.29(1)(l). During the hearing, Adecco strayed from the listed issue by testifying and providing evidence that Claimant committed misconduct under MCL 421.29(1)(b). The notice of hearing did not inform Claimant that misconduct was an issue.

The ALJ held Claimant was disqualified from benefits for misconduct under MCL 421.29(1)(b). The Board of Review affirmed the decision of the ALJ and denied rehearing. Claimant appealed to Ottawa County Circuit Court.

DECISION: The Court affirmed the decision of the Board of Review because Claimant’s failure to participate in the hearing constitutes an act of neglect that deprives Claimant of the rights which Claimant may have exercised at the hearing.

RATIONALE: Rule 421.1206 of the Michigan Administrative Code (rescinded in 2015) requires an ALJ to grant an adjournment of a hearing in which a new issue that was not cited in the notice of hearing was raised unless both parties knowingly agree to proceed on the new issues. This rule was refined in Szypa v Kasler Electric Co, 136 Mich App 116 (1984). There, the Michigan Court of Appeals held that, when an issue is raised before an ALJ that was not placed in the notice of hearing, (a) a party is entitled to an adjournment if either party requests it and (b) no evidence may be taken on the new issue unless a knowing and informed waiver of the adjournment is obtained. Id. at 120. In Syzpa, the claimant was present at the hearing and did not waive his right to adjournment, rendering the proceedings on the new issue improper.

Here, Claimant did not participate in the hearing. MCL 421.33 states that “if the appellant fails to appear or prosecute the appeal, the referee may dismiss the proceedings or take other actions considered available.” One such of these “other actions” is taking evidence on an issue that was not discussed in the notice of hearing.

An absent party cannot request an adjournment or provide a knowing and informed waiver. Courts have referred to parties’ failure to appear for a hearing as “extravagant and indefensible neglect.” See Radke v Nelson Mill Co, 37 Mich App 104 (1971). Failure to attend a properly noticed hearing is an act of neglect, and the party who neglects to attend the hearing waives the right to request an adjournment or provide knowing and informed consent to waiving an adjournment. Because Claimant failed to participate in the ALJ hearing, he waived his rights to an adjournment on the unannounced misconduct issue.

Digest author: Sean Higgins, Michigan Law, Class of 2017
Digest updated: November 4, 2017