Order Michigan Supreme Court
Lansing, Michigan
May 8, 2009 Marilyn Kelly,
Chief Justice
136961 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
EXPRESS PLUMBING, HEATING & Diane M. Hathaway,
MECHANICAL, INC., Justices
Employer-Appellant,
v SC: 136961
COA: 282310
Oakland CC: 2007-084403-AE
LINDA S. BECHLER,
Claimant-Appellee,
and
DEPARTMENT OF LABOR & ECONOMIC
GROWTH, UNEMPLOYMENT INSURANCE
AGENCY,
Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the July 8, 2008 order of
the Court of Appeals is considered, and it is DENIED, because we are not persuaded that
the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
Because I believe the Michigan Employment Security Commission (MESC), in a
split decision, erred in finding that the claimant was qualified to receive unemployment
benefits after she voluntarily left her job with her employer, I dissent. Unemployment
benefits in this state are intended for individuals – of whom there is no current shortage –
who find themselves “unemployed through no fault of their own.” MCL 421.2.
However, in this case, such benefits are paid to support the claimant’s own decision to
become unemployed out of unhappiness with her employer’s altogether-reasonable
expectation that she provide a full day’s work in exchange for her compensation.
“[A]n individual is disqualified from receiving [unemployment] benefits if he or
she . . . [l]eft work voluntarily without good cause attributable to the employer . . . .”
MCL 421.29(1)(a). “‘[G]ood cause’ compelling an employee to terminate his
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employment should be found where an employer’s actions would cause a reasonable,
average, and otherwise qualified worker to give up his or her employment.” Carswell v
Share House, Inc, 151 Mich App 392, 396-397 (1986).
In 2000, the employer hired the claimant to provide assistance with its storage
rental business. The claimant subsequently resigned in May 2006 and sought
unemployment benefits. In finding that the claimant had “good cause” for leaving her
job, and therefore qualifying for unemployment benefits, the administrative hearing
officer cited new services in which the employer became involved that required the
claimant to perform new duties. Yet, the claimant began performing these duties without
objection long before she quit in May 2006. The claimant testified that a rental truck
moving service began in December 2000, approximately six months after she began her
employment; furnace sales began in March 2002; a shrink wrap service began in
September 2003 and ended in April 2005; and sign sales began in November 2003.
The claimant’s duties with respect to these new services were similar to her duties
performed with respect to the storage rentals. Mainly, she interacted with customers and
provided them with information and service. The claimant never indicated that she was
not qualified to perform her new duties; nothing indicates that she had any particular
difficulty in completing these duties within her regularly-scheduled hours; and, as the
hearing officer herself concluded, “[n]one of these tasks required a great deal of time for
claimant to assist the customers with.” Accordingly, in my judgment, it cannot be said
that a reasonable employee would have relinquished her employment because of these
new duties, given that the duties were well within the claimant’s qualifications and she
was able to reasonably complete these duties during her normal work hours.
The hearing officer noted that, based on daily reports transmitted to the
employer’s main place of business, which was separate from the storage rental facility,
the claimant’s tasks increased from an average of 7.4 “tasks” a day in 2000 to 17.7
“tasks” a day in 2005. These reports, however, afford no evidence at all of any particular
work increase. For example, the claimant testified that one of her duties relating to the
storage units was to process payments. In July 2000 reports, the claimant specified,
“[p]rocessed several payments.” Later, in an October 2005 report, she listed “[p]rocessed
a couple payments,” “[p]rocessed a couple more payments,” and “[p]rocessed a phone
credit card payment. And mailed out the receipt.” Thus, although the number of
recorded entries related to processing payments may have increased over this period,
nothing is revealed about whether the actual work increased. The daily reports, in my
view, fail to establish any increase in work and thus do not support the hearing officer’s
finding that the claimant had “good cause” to give up her employment.
Although an award for unemployment benefits is reviewed by this Court under a
standard according considerable deference to the MESC’s factual determinations, the
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evidence here does not, in my judgment, support the conclusion that the claimant had
good cause for quitting her employment. Instead, the evidence demonstrates that,
although the claimant may have performed additional duties, in no way did those duties
increase her workload beyond what she could reasonably perform during the workday.
As the dissenting member of the MESC concluded:
Here, the record showed the claimant did not have enough to do
while on company time. The employer assigned her additional duties to
keep her busy, and so that the claimant would not conduct her own personal
business while on company time.
Being required to work during all hours of one’s employment is hardly a
circumstance of employment that would cause a reasonable person to leave. Rather, such
an employee must expect that any position of employment, even one that may start out
slowly, will eventually require the employee to be working during the hours for which he
or she is being paid. To hold otherwise would seemingly permit an employee hired in the
midst of a poor economy, when business is slow, to later assert “good cause” once the
economy strengthens and the employer’s business increases, based on the fact that such
employee must then work harder. It is hard to imagine a less responsible unemployment
compensation policy, and I do not see evidence in MCL 421.29(1)(a) that this is what
Michigan has established. I would reverse the MESC’s decision.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 8, 2009 _________________________________________
d0505 Clerk