Quick v. Department of Labor

Johnson, J.,

¶ 10. dissenting. How is it that an employee whose employer never *588filed a first report of injury, in violation of workers’ compensation laws, and whose employer threatened the employee with an illegal polygraph because the employer doubted the employee’s credibility, is not entitled to leave her job for good cause? In upholding the Board’s decision in this case, the majority opinion denies to this employee the protection of yet another Vermont law enacted for the protection of workers — the unemployment compensation system — a law that is to be liberally construed.

¶ 11. The purpose of allowing a worker who leaves her job voluntarily for “good cause” to access unemployment benefits is obvious — the employee will not be forced to endure an oppressive work situation for fear that abandoning that situation will leave the employee without the essential economic safety net provided by unemployment benefits. At the heart of this and other worker protection laws is the recognition that the power dynamic between employer and employee is one that tilts heavily in favor of an employer. Ignoring the worker protection laws, the majority opts instead to leave an employee with the Hobson’s choice of voluntarily exiting a toxic work environment, thereby forfeiting unemployment benefits, or enduring that toxic work environment until the employer fires her. Because I believe claimant had good cause to leave her employment, I cannot agree with the Board’s conclusion that she did not act reasonably in quitting. I, therefore, respectfully dissent.

¶ 12. Claimant worked for approximately two years for employer as a convenience store night clerk, making an hourly wage of $8.25. On July 12, 2008, claimant told her supervisor that she had injured her back the night before while reaching for something on a shelf. She then went to the emergency room for treatment. When claimant received the bill for her medical expenses, she approached employer to ascertain why her bill was not paid through workers’ compensation. At this meeting, employer indicated that she did not believe claimant’s version of the events precipitating the need for medical treatment and threatened to call the state police to arrange for claimant to take a lie-detector test. Claimant subsequently left her employment and filed an application for unemployment benefits, the denial of which is the subject of this appeal.

¶ 13. Despite its “troubling” findings that employer had violated two worker protection laws — 21 V.S.A. § 494a, which makes it illegal for an employer to require an employee to submit to a lie-detector test as a condition of employment, and 21 V.S.A. § 701, which requires an employer to file a report of injury for purposes of workers’ compensation — the Board nonetheless concluded that in this case “the employer’s apparent disregard or ignorance of the law was not the actual catalyst for the claimant’s resignation.” Instead, the Board concluded that claimant, “when confronted by the employer with conflicting accounts of how she had injured herself, chose to voluntarily resign.” Claimant argues that the Board erred as a matter of law in upholding the denial of claimant’s unemployment benefits and disregarding the import of employer’s violation of these two worker protection laws. I agree. Even under the deferential standard of review owed to the Board’s conclusions, the established facts in this case — specifically the acknowledgment that employer violated two worker protection laws — simply do not support the result reached by the Board and, therefore, “compel a different result as a matter of law.” Burke v. Dep’t of Employment See., 141 Vt. 582, 584, 450 A.2d 1156, 1157 (1982) (quotation omitted).3

*589¶ 14. The position of the Department of Labor, which was set forth by the hearing officer and adopted by the Board, was that employer’s mere threat of an illegal polygraph test was of no moment: “Had a refusal by the claimant to undergo such a test led to her discharge by the employer, such a discharge would undoubtedly be considered as not for misconduct. But the mere threat of arranging such a test does not provide good cause attributable to the employer for initiating separation.” This is a proposition we explicitly rejected in Burke, where we concluded that an employee had good cause to leave his employment after an employer breached his contractual obligation to provide health care benefits even though “the employer might make it up tomorrow.” Id. at 587, 450 A.2d at 1158.

¶ 15. The majority sees a distinction between this case and Burke, because the violation “did not deprive claimant of a contractually promised monetary benefit.” Ante, Í 7. But the protections afforded by state laws are just as much a part of the contract of every worker in the state as any private obligation to pay medical benefits. Indeed, they are stronger than private obligations because they have the force of the Legislature’s public policy behind them. Just as breach of an employer’s contractual obligations to her employees may give an employee good cause to quit, so too must a breach of employer’s legal obligations to her employees. See Hodgeman v. Jard Co., 157 Vt. 461, 464, 599 A.2d 1371, 1373 (1991) (noting that “workers’ compensation statute is remedial and is to be construed broadly to further its purpose of making employees injured on the job whole”); see also Garrelts v. Employment Div., 535 P.2d 115, 117 (Or. Ct. App. 1975) (concluding that claimant who proved he quit his job because employer would not make legally required deductions from his pay established good cause for leaving); Zinman v. Unemployment Comp. Bd. of Review, 305 A.2d 380, 381 (Pa. Commw. Ct. 1973) (concluding that where employer illegally recorded telephone calls in course of business, even though claimant was not required to record calls himself, he still had good cause to leave where “[t]he practice was at best highly questionable and the avoidance... seems to us to have been the path to prudence”). The benefit to an employee of an employer’s adherence to state laws is obvious and avoids the exact situation in which claimant found herself: saddled with an expensive medical bill and facing resistance from her employer in accessing her rights under the law.

¶ 16. Moreover, the Board’s conclusion that these two violations were not the actual catalyst for claimant leaving does not follow from the undisputed evidence. Claimant confronted employer for the sole reason that her $1208 hospital bill had not been paid by workers’ compensation. At this meeting with employer, claimant was immediately (and illegally) threatened with a lie-detector test. This situation amounts to more than what the majority characterizes as merely a “perceived insult of being called a liar by her employer.” Ante, ¶ 5. It signals the effective end of the employment relationship. See Habben v. G.F. Buche Co., 2004 SD 29, ¶ 14, 677 N.W.2d 227 (requiring admission of theft as condition of continued employment amounted to good cause to quit); In re May, 609 N.Y.S.2d 444, 444 (App. Div. 1994) (mem.) (concluding that claimant left for good cause where employer refused to investigate claimant’s claim of innocence after he was accused of stealing and was told he would be carefully watched in future). The Board just *590refused to see it and trivialized claimant’s response as an insult to her credibility that was not “sufficiently demeaning.”

¶ 17. Here, claimant did exactly what I would have thought the Board considered appropriate. She made a good faith effort to amicably settle the dispute with her employer over the cause of her injury. Oddly, the majority and the Board conclude that claimant left merely because she took offense to her credibility being placed into question. This conclusion seems to imply that claimant would have been better off quitting immediately after she became aware that there was a problem with the processing of her workers’ compensation claim. Instead, claimant approached employer and tried to salvage the work relationship. Seeing that peaceful resolution “was going absolutely nowhere” and faced with illegal threats of being subjected to a lie-detector test combined with employer’s illegal refusal to submit a report of the injury, claimant took the only recourse she felt she had: she left what had become the same sort of “intolerable situation” we found amounted to good cause to quit in Burke.

¶ 18. If it is not good cause to leave an employment relationship that has broken down because the employer refuses to follow the law, then a worker will be forced to suffer the consequences of the illegality, which, in this case, would have meant foregoing a workers’ compensation claim or waiting to be fired for refusing a polygraph. It is no consolation to the worker to have been fired unfairly — it is still a firing. The worker still has the burden of applying for a new job and explaining the unfair firing. All a new employer will see is that this worker is accusing her former employer of illegality. It is hard enough to obtain employment in today’s economy, but it will be almost impossible for a worker in the untenable situation the Board and the majority suggest should have happened in this case.

¶ 19. Finally, it is more than “troubling,” if I may use the words of the Board, that one arm of the State of Vermont, the Department of Labor, viewed the workers’ compensation law violation and the illegal threat of a polygraph as irrelevant to this employment relationship. Because I believe that claimant did have good cause to leave her employment, I would reverse the Board’s denial of unemployment benefits.

¶ 20. I am authorized to say that Justice Dooley joins this dissent.

Motion for reargument denied January 6, 2010.

Though the majority accuses me of warring with the referee’s and Board’s factual findings, ante, ¶ 8,1 reiterate that I *589accept the findings of fact regarding the events leading up to this action, but disagree with the legal conclusion the referee and Board drew from those findings — that these events did not amount to good cause for claimant to quit.