An analysis of Massachusetts appellate review of Division of Unemployment Assistance decisions pursuant to G.L. c.151a, 25(e) from 2003 to 2013

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1 An analysis of Massachusetts appellate review of Division of Unemployment Assistance decisions pursuant to G.L. c.151a, 25(e) from 2003 to 2013 I. History and Background of Unemployment Insurance Unemployment Insurance (UI) was established as a New Deal program with the purpose of protecting workers from the economic consequences of a sudden job loss. 1 The program provides temporary subsistence benefits that allow individuals to stay at home and look for new work. 2 Unemployment assistance is intended to afford benefits to persons who are out of work and unable to secure work through no fault of their own. 3 Since the statute calls for a liberal construction in aid of its purpose, 4 if an employer disputes a claim for benefits the issue is not the validity on the grounds for discharge, but rather the qualification of the former employee for assistance in the entire circumstances of the discharge. 5 The program is funded with both federal and state taxes paid by the employer that are based on payroll. 6 The federal taxes fund the Division of Unemployment Assistance (DUA), the agency charged with administering the UI benefits program. State taxes fund the actual benefits. 7 The tax rate varies from employer to employer and is based on how many employees are discharged without fault or who quit for good cause attributable to the employer (the experience rate. ) The higher the experience rate the higher the employer s tax rate. The funding of the UI 1 UNEMPLOYMENT FOR THE UNINITIATED, ELII MA-CLE Id. 3 Howard Bros. Mfg. v. Director of the Div. of Employment Security, 333 Mass. 244, 248, 130 N.E.2d 108 (1955) 4 Mass. Gen. Laws Ann. ch. 151A, 74 (West) 5 Shriver Nursing Servs., Inc. v. Comm'r of Div. of Unemployment Assistance, 82 Mass. App. Ct. 367, 370, 974 N.E.2d 61, 64 (2012) citing Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 809, 672 N.E.2d 105 (1996). 6 Id. 7 Id. 1

2 program is based on the premise that the employer is responsible for its employees continued economic security if the employees joblessness is not their fault. 8 Eligibility for unemployment benefits is based on two criteria: (1) the job loss must not be the worker s fault 9 and (2) the worker must be attached to the workforce. 10 There are two ways in which an employee can experience job loss either the employee leaves or he is discharged but the determination of fault is not based solely on the mode of departure. An employee can prove that his job loss was not his fault in several ways under Section 25(e ) of the Commonwealth s unemployment compensation laws. 11 The broad purpose of section 25(e) is to provide temporary relief for those who are realistically compelled to leave work through no fault of their own for either personal or work-related reasons. 12 That is why there are several exceptions to the fault rule that preclude an employee from disqualification when they leave. If the employee leaves voluntarily (i.e. quits or resigns), he must demonstrate by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent. 13 If the employee is discharged, he must show by substantial and credible evidence that the discharge was NOT attributable to deliberate misconduct in willful disregard of the employing unit s interest, or to a knowing violation of a reasonable and 8 Id. 9 Leone v. Dir. of Div. of Employment Sec., 397 Mass. 728, 733 (1986) (the purpose of unemployment compensation is to provide compensation for those who are thrown out of work through no fault of their own) 10 Cramer v. Employment Sec. Comm'n, 367 P.2d 956, 958 (Ariz. 1962); Ashmore v. Unemployment Comp. Comm'n, 86 A.2d 751, 752 (Del. 1952). 11 G.L. c. 151A, 25(e) 12 Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 596, 307 N.E.2d 330 (1974). 13 G.L. c. 151A, 25(e)(1) 2

3 uniformly enforced rule or policy of the employer. 14 If the violation is shown to be a result of the employee s incompetence, then it does not qualify as a knowing violation, and does not disqualify the employee from receiving UI benefits. 15 The most common issues in UI benefits cases, and reason for this paper s focus, are whether the employee voluntarily quit or left for such an urgent, compelling and necessitous reason as to make the separation involuntary as per G.L. c. 151A, 25(e)(1) or if the employee was discharged for deliberate misconduct or knowing violation of a work rule under G.L. c. 151A, 25(e)(2). 16 a. G.L. c. 151A, 25(e )(1) If an employee can demonstrate to the satisfaction of the review examiner that he left for good cause attributable to the employing unit or its agent 17 or for reasons of an urgent, compelling and necessitous nature as to make his separation involuntary, 18 he is not disqualified from unemployment benefits. This exception converts a departure that is voluntary on its face to an involuntary departure that qualifies the employee for UI benefits. In determining whether a claimant s personal reasons for leaving a job are urgent, compelling, and necessitous within the meaning of the statute, the nature of the circumstances that led to the claimant s departure and the degree of compulsion that such circumstances exert on a claimant must be objectively evaluated. 19 The relevant standard for evaluating the nature 14 G.L. c. 151A, 25(e)(2) 15 Id. 16 APPEALS PROCESS, MUAG MA-CLE G.L. c. 151A, 25(e)(1); Still v. Comm'r of Employment & Training, 423 Mass. 805, 809, 672 N.E.2d 105, 110 (1996) 18 G.L. c. 151A, 25(e) ; Potris v. Comm'r of Dept. of Employment & Training, 42 Mass. App. Ct. 735, 738, 679 N.E.2d 605, 607 (1997). 19 Crane v. Comm'r of Dept. of Employment & Training, 414 Mass. 658, , 609 N.E.2d 476, 478 (1993) citing Reep v. Commissioner of the Dep't of Employment & Training, 593 N.E.2d

4 of the circumstances that led to the claimant s departure is the claimant s reasonable belief that the personal reasons were urgent, compelling, and necessitous. 20 If the claimant can demonstrate that the departure was caused by pressing circumstances, he qualifies for unemployment compensation benefits. 21 A wide variety of family obligations, legal duties, or other overpowering circumstances meet the requirements of urgent, compelling, and necessitous reasons for leaving work. 22 Personal circumstances such as pregnancy, leaving work to move to a new state where the spouse has secured employment, and lack of transportation to work site are examples of reasons which transform a claimant s voluntary departure from work into an involuntary departure qualifying for benefits. 23 One way that a claimant can establish that he left work for urgent, necessitous, and compelling reasons is if he first makes reasonable attempts to find a way to maintain the employee relationship. 24 However, such attempts are not statutorily required, and a claimant may still qualify for benefits if he reasonably believed leaves of absence were not available or that his request for a leave of absence would have been denied. 25 b. G.L. c. 151A, 25(e )(2) If an employer contests a discharged employee s claim for benefits, the employer must demonstrate to the review examiner that the claimant s acts and omissions constituted either (a) deliberate misconduct in wilful disregard of the employing unit's interest or (b) a knowing 20 Norfolk County Ret. Sys. v. Dir. of Dept. of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 765, 850 N.E.2d 1079, (2006). 21 Id. 22 Reep v. Comm'r of Dept. of Employment & Training, 412 Mass. 845, 847, 593 N.E.2d 1297, 1299 (1992). 23 Reep v. Comm'r of Dept. of Employment & Training, 412 Mass. 845, 847, 593 N.E.2d 1297, 1299 (1992). 24 SEPARATION FROM WORK, MUAG MA-CLE Id. 4

5 violation of a reasonable and uniformly enforced rule or policy of the employer. The second prong was added in 1992 with the intention of broadening the grounds for disqualification. 26 In these cases, the burden of production and persuasion is on the employer because these grounds are considered to be exceptions or defenses to an eligible employee s right to benefits. 27 Accordingly, the employer must present substantial evidence that demonstrates to the review examiner both deliberate misconduct and wilful disregard of the employer s interest. 28 With respect to 25(e )(2)(a), the employee s state of mind at the time of the misconduct is the critical factual issue in considering whether an employee s alleged misconduct is in wilful disregard of the employer s interest. 29 In determining an employee s state of mind, fact finder must consider the employee s knowledge of the employer s expectation, the reasonableness of that expectation and the presence of any mitigating factors. 30 This prong has been interpreted to cover any intentional conduct or inaction which the employee knew was contrary to the employer's interest." 31 With respect to 25(e )(2)(b), to qualify as a knowing violation, an employee must have been consciously aware that the consequence of the act being committed was a violation of an employer s reasonable rule or policy. 32 Therefore the key factor in determining eligibility 26 Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 811, 672 N.E.2d 105 (1996). 27 Id. 28 Gupta v. Deputy Dir. Of Div. Of Employment & Training, 62 Mass. App. Ct. 579, 585, 818 N.E.2d 217, 223 (2004) 29 Comm'r of Dep't of Employment & Training v. Dugan, 428 Mass. 138, 142, 697 N.E.2d 533, 536 (1998) 30 Id. 31 Gupta v. Deputy Dir. Of Div. Of Employment & Training, 62 Mass. App. Ct. 579, 585, 818 N.E.2d 217, 223 (2004) 32 Still v. Comm'r of Employment & Training, 423 Mass. 805, , 672 N.E.2d 105, (1996) 5

6 is the principle of intentionality, such that conduct that is determined to be unintentional by virtue of being involuntary, accidental, or inadvertent would not disqualify a claimant from UI benefits. 33 II. Appeals Process If a former employee s initial claim for UI benefits is denied, he may appeal to the DUA. There is a two-tiered appeals process within the agency. 34 First, the employee is granted a hearing to be adjudicated by a review examiner. Further appeal may be sought with the Board of Review. 35 Once these administrative remedies have been exhausted, the complainant has a right to judicial review with the District Court. 36 Either party can appeal the review examiner s decision to the Board of Review within 30 days of the date the mailing of the review examiner s decision. 37 Once it receives the application for review, the Board has 21 days to decide whether to accept review. 38 If the Board does not issue a decision within 21 days, the case is deemed denied and the review examiner s decision is the final DUA decision, which marks the start of the appeal period for judicial review. 39 The case must be filed with the District Court within 30 days of a final DUA decision. 33 Id. 34 APPEALS PROCESS, MUAG MA-CLE Id. 36 Id. 37 G.L. c. 151A, G.L. c. 151A, 41(a) 39 Id. 6

7 The court reviews the administrative record but will not conduct an evidentiary hearing. 40 A further appeal may be taken to the Appeals Courts in accordance with the Massachusetts Rules of Appellate Procedure. 41 III. Legal Standard for Judicial Review Judicial review is provided pursuant to the state Administrative Procedure Act, G.L. c. 30A, 14. If a party seeks judicial review, the courts must determine if there is an issue of fact or law. If there is an issue of fact, the court is required to give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it. 42 The court may only set aside the agency s decision if it determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law. 43 However, if the finding involves a question of law, it is subject to de novo judicial review. 44 IV. 10 years of Appellate review of G.L.. c. 151A, 25(e)(1) and (e)(2) claims 2012 (1) Shriver Nursing Servs., Inc. v. Comm'r of Div. of Unemployment Assistance, 82 Mass. App. Ct. 367, 974 N.E.2d 61 (2012) Here, the DUA granted a nurse s claim for UI benefits after her employment was terminated for violating the employer s policy against sleeping while on duty. The District Court affirmed the board s decision and the employer appealed on the basis that the DUA finding was unsupported by substantial evidence, and a disposition arbitrary, capricious, and abusive of 40 APPEALS PROCESS, MUAG MA-CLE Id. 42 Raytheon CO. V. Director of the Div. Of employment Sec, 364 Mass. 593, 595 (1974) 43 Coverall N. America, Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857, 857 N.E.2d 1083 (2006) 44 Supra note 22 (Raytheon) 7

8 discretion. 45. The Appeals Court applied de no review, and after a lengthy discussion of whether falling asleep inadvertently constituted a knowing violation of a rule or policy within the meaning of M.G.L.A. c. 151A, 25(e)(2), reversed. (2) Shuman v. Dir. of Div. of Unemployment Assistance, 82 Mass. App. Ct. 1109, 972 N.E.2d 81 (2012) The Appeals Courts affirmed the District Court s decision affirming the board s decision, which disqualified the claimant from receiving UI benefits on the basis that he left work voluntarily under G.L. c. 151A, 25(e )(1). The Court applied the highly deferential standard of review, and concluded that the agency decision was supported by substantial evidence and free from error of law. The Court gave due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it, G.L. c. 30A 14(7), as appearing in St.1973, c. 1114, (3) Wininger v. Dir. of the Div. of Unemployment Assistance, 80 Mass. App. Ct. 1116, 957 N.E.2d 731 (2011) Plaintiff filed for UI benefits after he was fired for swearing during a discussion with his supervisor. Though his claim was initially approved by the DUA, the review examiner and board of review denied the plaintiff unemployment benefits under the deliberate misconduct prong of G.L. c. 151A, 25(e )(2). The District Court judge reversed the DUA decision, finding that it was not supported by substantial evidence. The Appeals Court affirmed the District Court s 45 Shriver Nursing Servs., Inc. v. Comm'r of Div. of Unemployment Assistance, 82 Mass. App. Ct. 367, 370, 974 N.E.2d 61, 64 (2012) 8

9 decision, agreeing with the judge that the findings of the review examiner were not supported by substantial evidence. (4) Connolly v. Dir. of Div. of Unemployment Assistance, 460 Mass. 24, 948 N.E.2d 1218 (2011) The Supreme Judicial Court affirmed the District Court s decision, which affirmed the board s decision to deny the plaintiff s benefits claim. The Supreme Judicial Court applied de novo review and determined that the claimant left work without good cause attributable to the employer, pursuant to G.L. c. 151A, 25 (e ) (1) (5) Magbagbeola v. Dir., Div. Of Unemployment Assistance, 76 Mass. App. Ct. 1119, 923 N.E.2d 122 (2010) The claimant was disqualified from receiving unemployment benefits because he was terminated due to deliberate misconduct in willful disregard of the employing unit s interest under G.L. c. 151A, 25(e )(2). The Boston Municipal Court affirmed the board of review s decision. The Appeals Court reversed after applying de novo review and determining that there was no substantial evidence supporting the employer s testimony. (6) McGonagle v. Comm'r Of Div. Of Unemployment Assistance, 76 Mass. App. Ct. 1117, 922 N.E.2d 863 (2010) The board of review disqualified the claimant from receiving unemployment benefits after he was discharged by the MBTA for knowingly violating a reasonable and uniformly enforced rule or policy. See G.L. c. 151A, 25(e )(2). The Boston Municipal Court affirmed the board s decision after applying the appropriate deferential standard of review. After a discussion of intent under G.L. c. 151A, 25(e )(2), the Appeals Court affirmed. 9

10 (7) Gabovitch v. Jurczak, 76 Mass. App. Ct. 1109, 920 N.E.2d 88 (2010) The claimant, Barbara Jurczak filed for unemployment benefits after leaving her employment because at the time she reasonably believed that her job was about to come to an end. The review examiner, board of review, and the District Court agreed that the claimant qualified for benefits under, G.L. c. 151A, 25(e )(1), which is a statutory exemption to disqualification. The Appeals Court applied the appropriate, deferential standard of review, and affirmed the District Court s decision. (8) Encore Images, Inc. v. Dir. of Div. of Unemployment Assistance, 76 Mass. App. Ct. 1109, 920 N.E.2d 88 (2010) Claimant sought UI benefits after she was discharged by her employer following an argument with her boss. The DUA review examiner granted the employee s claim, and the decision was upheld by the board of review and District Court judge. On appeal, the employer argued under both prongs of 25(e ), alleging that the claimant (1) voluntarily left her job; (2) knowingly violated a reasonable and uniformly enforced rule or policy when she had an argument with her boss and (3) engage in deliberate misconduct. The Appeals Court applied the required deferential standard of review and affirmed the District Court s ruling, holding that the review examiner s decision, that the employee was owned benefits in accordance with G.L. c. 151A, 25(e )(2), was supported by substantial evidence and was free from error (9) Town Of E. Bridgewater v. Div. Of Unemployment Assistance, 76 Mass. App. Ct. 1102, 918 N.E.2d 98 (2009) 10

11 The claimant, a former police officer who was discharged for failing to immediately turn over his firearm when asked to do so, was granted UI benefits by the DUA, and that decision was upheld by a District Court judge. The Appeals Court reversed, finding that the officer s failure to turn over his gun when given an order was substantial evidence to reverse the board of review s decision under G.L. c. 151A, 25(e)(2). (10) Cosom v. Dir. of Div. of Unemployment Assistance, 75 Mass. App. Ct. 1108, 914 N.E.2d 989 (2009) The plaintiff Cosom, was discharged from The Boston Home, Inc.m for misuse of company resources for personal gain. The DUA denied the employee benefits on the grounds that he knowingly violated a rule or policy pursuant to G.L. c. 151A, 25(e )(2). The plaintiff then appealed to a Boston Municipal Court judge, who affirmed the DUA s decision, alleging that the decision was not supported by substantial evidence and was arbitrary and capricious. The Appeals Court affirmed, holding that the decision to deny UI benefits was supported by substantial evidence such that a reasonable fact finder could conclude that Cosom's use of his subordinate employee violated The Boston Home's work policy. (11) Gold Medal Bakery, Inc. v. Comm'r of Div. of Unemployment Assistance, 74 Mass. App. Ct. 1105, 903 N.E.2d 1145 (2009) The claimant was discharged for calling in sick. The DUA review examiner and board of review allowed the claimant to collect UI benefits, finding that he was not disqualified under G.L. c. 151A, 25(e )(2). The District Court upheld the DUA s decision. The Appeals Court, after applying the required deferential standard of review, found that as matter of law on these undisputed facts, the employer could not show that its attendance policies were uniformly enforced within the meaning of 25(e ) (2), and also affirmed. 11

12 2008 (12) City of Boston v. Downing, 73 Mass. App. Ct. 78, 895 N.E.2d 788, 789 (2008) The board of review affirmed the review examiner s decision to grant the claimant, a police officer with the Boston police department, UI benefits. The officer was dismissed for a violation of the department s substance abuse policy (G.L. 151A, 25(e )(2)), because when he submitted to a drug test, the results indicated the presence of cocaine in his hair sample. However, based on the evidence presented at the hearing, the review examiner found that the claimant had not ingested cocaine during his employment. The Boston Municipal Court determined that the board's decision was unsupported by substantial evidence and reversed. Since this was a fact-based case, the Appeals Court could not apply de novo review. The Court reversed the lower court s finding and affirmed the DUA s decision because even though a court may have made a different choice, it may not displace an administrative board s choice between two fairly conflicting views. 46 (13) Charrette v. Comm'r of Div. of Unemployment Assistance, 72 Mass. App. Ct. 1114, 892 N.E.2d 837 (2008) The claimant applied for UI benefits after she left her job in return for a so-called voluntary separation package (VSP). The DUA review examiner determined that the claimant had departed voluntarily without a reasonable belief that she would soon be laid off if she did not accept the VSP, a disqualifying reason under, G.L. c. 151A, 25(e)(1). A District Court judge affirmed the board s decision. While the appeal was pending, the Appeals Court issued an 46 City of Boston v. Downing, 73 Mass. App. Ct. 78, 82-83, 895 N.E.2d 788, (2008) 12

13 opinion on another case concerning the same VSP issue 47 Although the Appeals Court applied a deferential standard of review, it still concluded that the complainant had good cause to elect the VSP because of employer-created uncertainty which left the claimant unable to assess, realistically, her risk. Therefore the claimant had good cause for accepting the VSP, as a mitigating strategy, and leaving. Consequently, the Appeals Court reversed the District Court s and DUA s decision (14) Jones v. Div. of Unemployment Assistance, 69 Mass. App. Ct. 1117, 872 N.E.2d 230 (2007) The claimant was terminated because he continued to be insubordinate to his supervisors after receiving a warning. After an initial denial of benefit, the review examiner affirmed the denial pursuant G.L. c. 151A, 25(e )(2). The DUA board of review affirmed the review examiner s decision, which was further upheld by the District Court. The Appeals Court held that the review examiner s decision was supported by substantial evidence, and affirmed as well. (15) Nazzaro v. Dir. of Workforce Dev., 69 Mass. App. Ct. 1112, 870 N.E.2d 117 (2007) The claimant was denied UI benefits under G.L. c. 151A, 25(e )(1) by the board because he had resigned without good cause attributable to the employer. A District Court judge reversed. The Appeals Court reversed the District Court and upheld the board s decision. In reviewing the board s decision, the Appeals Court is not bound by the findings or rulings of the District Court judge. The Appeals Court determined that the board s decision was supported by 47 State Street Bank & Trust Co. v. Deputy Director of the Div. of Employment & Training, 66 Mass.App.Ct. 1 (2006), 13

14 substantial evidence, meaning that which a reasonable mind might accept as adequate to support a conclusion and affirmed. (16), (17), (18) Curtis v. Comm'r of Div. of Unemployment Assistance, 68 Mass. App. Ct. 516, 863 N.E.2d 71 (2007) 48 The DUA denied the employees applications for benefits in all three cases on the grounds that the employees had departed voluntarily without reasonable belief that they would be soon laid off if the VSP was not accepted. These cases were considered under G.L. c. 151A, 25(e )(1). The District Court judge affirmed the board s decision in all three cases. The Appeals Court affirmed the board s decision in two of the cases and vacated and remanded the third case to the board of review (19) Kanzaki Specialty Papers, Inc. v. Rife, 67 Mass. App. Ct. 1118, 857 N.E.2d 509 (2006) Employee filed for UI benefits, which the employer disputed under G.L. c. 151A, 25(e)(2) because he cut a company padlock and threatened to do it again. The DUA granted the employee s application, ruling that the employer failed to meet its burden of proof and finding that the employee had acted out of concern for the safety of his coworkers and the company s product, which would have been ruined by high humidity if he did not open the door and insert a screen. Moreover, the company s approval of the use of screens indicated that the activity was not committed in wilful disregard of the employer s interest. Therefore, the District Court s judgment affirming the board s decision was affirmed by the Appeals Court. (20) Norfolk Cnty. Ret. Sys. v. Dir. of Dep't of Labor & Workforce Dev., 66 Mass. App. 48 These are actually three companion cases 14

15 Ct. 759, 850 N.E.2d 1079 (2006) The DUA granted UI benefits to claimant who left her job as a bookkeeper due to a conflict between her work hours and child care responsibilities. The review examiner and board granted the complaint UI benefits because her departure was determined to involuntary by urgent, compelling, and necessitous reasons within the meaning of G.L. c. 151A, 25(e )(1). The District Court reversed the board s decision, holding that the agency s decision was unsupported by substantial evidence. Applying considerable deference to the agency s decision, the Appeals Court remanded the case back to the review examiner to make all requisite findings and sufficiently explain his reasons or the evidence underlying his decision. (21), (22) State St. Bank & Trust Co. v. Deputy Dir. of Div. of Employment & Training, 66 Mass. App. Ct. 1, 845 N.E.2d 395 (2006) 49 The employer sought to reduce its workforce without involuntary terminations by offerings its employees a Voluntary Separation Package (VSP) that incentivized employees to leave. Two former employees who accepted a VSP and terminated their employment applied for UI benefits. The DUA awarded them benefits under G.L. c. 151A, 25(e )(1), determining that their departure was considered voluntary with good cause attributable to the employer. The District Court vacated those awards. And the Appeals Court reversed, holding that the evidence was sufficient to support the review examiner s decision (23) Allen of Michigan, Inc. v. Deputy Dir. of Div. of Employment & Training, 64 Mass. App. Ct. 370, 833 N.E.2d 627 (2005) 49 These are technically two separate cases 15

16 The DUA awarded UI benefits to a former hospice nurse in accordance with G.L. c. 151A, 25(e )(2). The Boston Municipal Court affirmed. When the employer appealed, the Appeals Court assessed the employee s state of mind in determining whether she knowingly violated a rule or policy by considerinh the worker s knowledge of the employer s expectation, the reasonableness of that expectation, and the presence of any mitigating factors. 50 After a careful evaluation, the Appeals Court reversed, holding that the employee knowingly violated a rule or policy when she failed to make a home visit when she was instructed to do so by a triage nurse, and was not entitled to benefits (24) Gupta v. Deputy Dir. Of Div. Of Employment & Training, 62 Mass. App. Ct. 579, 818 N.E.2d 217 (2004) The Division of Employment and Training 51 determined that an employee was ineligible to collect UI benefits under G.L. c. 151A, 25(e )(2), because he had been discharged for having engaged in deliberate misconduct in wilful disregard of his employer s interest. The District Court upheld the DET s determination. The Appeals Court affirmed on the basis that the employer s failure to meet their burden of proof did not preclude the DET from concluding that the employee was discharged from engaging in deliberate misconduct in wilful disregard of the employer s interest. The Appeals Court applied a highly deferential review. V. Summary and Analysis of Results 50 See Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. at , 672 N.E.2d 105, quoting from Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97, 384 N.E.2d 642 (1979). 51 The predecessor to DUA 16

17 DUA granted benefits G.L. c. 151A, 25(e )(1) District Court DUA denied benefits 82 Mass. App. Ct (2012) affirmed affirmed 460 Mass. App. Ct. 24 (2011) affirmed affirmed Appeals Court 76 Mass. App. Ct (2010) affirmed affirmed 72 Mass. App. Ct (2008) affirmed reversed 69 Mass. App. Ct (2007) reversed reversed 68 Mass. App. Ct. 516 (2007) affirmed affirmed 68 Mass. App. Ct. 516 (2007) affirmed affirmed 68 Mass. App. Ct. 516 (2007) affirmed vacated/remanded 66 Mass. App. Ct. 759 (2006) reversed remanded 66 Mass. App. Ct. 1, 845 (2006) reversed reversed 66 Mass. App. Ct. 1, 845 (2006) reversed reversed G.L. c. 151A, 25(e )(2) District Court Appeals Court DUA granted benefits DUA denied benefits 82 Mass. App. Ct. 367 (2012) affirmed reversed 80 Mass. App. Ct (2011) affirmed affirmed 17

18 76 Mass. App. Ct (2010) affirmed reversed 76 Mass. App. Ct (2010) affirmed affirmed 76 Mass. App. Ct (2010) affirmed affirmed 76 Mass. App. Ct (2009) affirmed reversed 75 Mass. App. Ct (2009) affirmed affirmed 74 Mass. App. Ct (2009) affirmed affirmed 73 Mass. App. Ct. 78 (2008) reversed reversed 69 Mass. App. Ct (2007) affirmed affirmed 67 Mass. App. Ct (2006) affirmed affirmed 64 Mass. App. Ct. 370 (2005) affirmed reversed 62 Mass. App. Ct. 579 (2004) affirmed affirmed First of all, between 2003 and 2013, of the 24 cases that reached the Appeals Court, roughly the same amount were decided pursuant to G.L. c. 151A 25(e )(1) 52 as G.L. c. 151A 25(e )(2). 53 With respect to claims brought under (e)(1), 63.6 percent 54, or a comfortable majority, of the (e)(1) cases that reached the Appeals Court were denied by the DUA review examiner and/or board of review. Of those cases that were denied benefits, the Appeals Court either (1) affirmed the DUA s decision or (2) vacated the District Court s decision and remanded the case back to the DUA six out of seven times. 55 In short, the Appeals Court affirmed the DUA s decision to deny benefits on almost every single occasion in the past ten years. With respect to the four cases that granted unemployment benefits by the DUA, the Appeals Court cases cases 54 7 out of 11 cases percent 18

19 upheld the DUA s decision 56 every single time. The eleven holdings of the Appeals Court reversed and/or vacated the decisions of the District Court exactly six times. Although it may not be helpful to use these numbers for predictive purposes, the figures suggest that at least in the past ten years, the Appeals Court has allocated significant deference to the DUA s decisions, reversing slightly more than half 57 of the District Court s decisions. Without extrapolating into the future, it can be said that the decision to appeal a District Court holding may have only been worthwhile in the past ten years, if the District Court had reversed the DUA s original holding. In analyzing the date under 25(e)(2), it appears that the DUA granted and denied benefits to the same extent. 58 However, the Appeals Court upheld the DUA s holdings to grant UI benefits on only three out of seven occasions. By contrast, the Appeals Court affirmed five out of six DUA denials of benefits. 59 Again, under this section, the Appeals Court affirmed and reversed the District Court s holding roughly the same amount of times. 60 These numbers indicate that the Appeals Court was more likely than not to uphold the DUA s decision to deny benefits in cases where the DUA determined that the employee s discharge was attributable to the deliberate misconduct in wilful disregard of the employing unit s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer There was only one case in which the District Court s decision was remanded, which I am counting as upholding the DUA s decision out of 11 (54.5 percent) District Court holdings were reversed or vacated. 58 The DUA granted UI benefits for seven cases and denied for six percent 60 The Appeals Court reversed five District Court decisions and affirmed eight. 61 G.L. c. 151A, 25(e)(2) 19

20 In terms of how the Appeals Court s decisions may have evolved over time, given the small sample size of cases adjudicated under this specific section of the statute, it is impossible to make a statistically significant inference one way or another. VI. Conclusion This paper analyzed the judicial history of cases that originated as claims for unemployment benefits with the Division of Unemployment Assistance and ended at the Appeals Court level. After reviewing 10 years of Appeals Court decisions on cases that reviewed claims brought under G.L. c. 151A, 25(e)(1) and G.L. c. 151A, 25(e)(2), the numbers suggest that for the past decade the Appeals Court has generally tended to uphold the decisions of the DUA notwithstanding the holdings of the District Court. This conclusion is further supported by the fact that in a vast majority of cases the Appeals Court applied a deferential standard of review rather than de novo. Interestingly, the Appeals Court upheld the DUA s decisions to deny benefits with greater frequency when it pertained to claims under G.L. c. 151A, 25(e)(2) than under G.L. c. 151A, 25(e)(1). At the risk of making unfounded assumptions, it would be interesting to know whether the fact that this provision referred to employees who were discharged for intentional behavior to the detriment of the employer played any role in the Appeals Court s decisionmaking process. Further research into whether more deference was given to the DUA in these cases may be useful. 20