Tuesday, November 9, 2010

All Fired Up and Nowhere to Go

Demar v. Dept of Labor, 2010 VT 69 (mem.).

In an appropriate tale for our times, Claimant worked as director at a day care center as “director” and teacher for $12.75 and hour.  At forty hours a week, claimant’s base pay was approximately, $26,520.  You see where the big money is in this state—childcare, Ben, childcare.  In 2009, the toilet-flush in the economy hit the day care center’s fan, and claimant’s wages were reduced to $10.50 an hour and 36 hours a week.  That translates out to annual base salary of $19,565 or the equivalent of a 24% pay cut.  As the SCOV majority notes in its decision, claimant would have been justified in leaving at that point, and would have been eligible for unemployment, which given the steep reduction would have made some sense—or at least calls to mind the Bob Newhart line about how he quit his job as clerk in the unemployment office making $55 a week once he learned that weekly unemployment benefits were $45 a week, and he “only had to come in to the office one day a week to collect it.”

But claimant, not living in a stand-up routine, did not quit her job.  She continued to work at the reduced rate for another two months.  Concurrent with this economic downturn, claimant and the owner began disagreeing, and claimant lost her “director” title following a job performance review.  Things rose to a head when the owner required claimant to attend an evening head start training session without pay.  Claimant, upset at this unfunded mandate, balked.  This led to a series of text messages, which ended with claimant—at the behest of her boyfriend—quitting her job.

Claimant sought unemployment benefits and was denied.  This denial was based on the fact that claimant failed to attend the training session and work out her differences with her employer.  This, held the Employment Security Board, affirmed by the SCOV majority, was fatal to claimant’s argument that she was forced out by the owner’s actions.

Hogwash! say Justices Johnson and Dooley in the dissent.  The purpose of the requirement that an employee try to remedy a poor working condition and try to work things out with the employer is to put the employer on notice and give the employer an opportunity to remedy the situation.  It is not a “gotcha” provision, and the majority and the Board looked at claimant’s situation far too narrowly.  Claimant was struggling in a job in which her salary had been slashed and working in a situation where she and the owner had developed some serious disagreements and issues.  The head start training was simply the last straw, and the Board needed to look at the totality of circumstances. 

In the end, the dissent argues for a broader interpretation of the law to help people like claimant while the majority defers to the Employment Service Board and its ability to judge claims. 

We wish claimant good luck on her finding a new job.  We believe she can take cold comfort in the fact that few other jobs pay as little as she was given to take care of the next generation.

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