Just Because I Did It Before

By Elizabeth Catlin

Piper v. Department of Labor, 2011 VT 32

Chalk one up for the little guy without a lawyer.  In this case, Mr. Piper and his former employer exchanged appeals all the way up the chain of decision-makers in the Department of Labor to fight out Mr. Piper’s claim for unemployment benefits.  At the first stage, the Department of Labor’s claims adjudicator concluded that Mr. Piper had refused suitable work without good cause.  Mr. Piper appealed this decision to an administrative law judge (ALJ), who reversed and found that the so-called suitable work was not so suitable.  The employer then took this decision to the Employment Security Board, who agreed with employer.  Ultimately, the SCOV reversed and held that the ALJ properly ruled that a ten-hour round-trip commute meant that the work was, indeed, not suitable.  Mr. Piper was awarded all of the benefits he would have received had the claims adjudicator not turned him down at the first step.

The background is as follows.  Mr. Piper had worked for an electrical company, during which time he reported to job sites all around Vermont.  Some of these jobs involved traveling up to two and one-half hours from his home.  For the more distant jobs, the employer paid Mr. Piper for his travel time and any overnight stays in motels.  Mr. Piper was laid off in early 2009, but in September of that year, his employer offered him work at a job site in Albany, New York.  Albany is about five hours from Mr. Piper’s Derby, Vermont home, and the job would have required Mr. Piper to be away from home for a week at a time.  According to Mr. Piper’s testimony at the ALJ hearing, his living situation had changed from the time of his previous employment, and he could not be away from his home for a week at a time.  Therefore, he refused the Albany job.  As indicated above, after Mr. Piper refused this work, a Department of Labor claims adjudicator decided that he refused suitable work without good cause.  On appeal, the ALJ found that the Albany job was outside of Mr. Piper’s labor market area and therefore unsuitable.

When the employer appealed the ALJ’s decision to the Employment Security Board, there appears to have been something of a breakdown of procedure and substance.  At the outset, per both the Board’s own notice of the hearing and the statute that dictates Board procedure, the Board was not to take new evidence.  Nonetheless, the Board proceeded to take factual testimony from the employer, who showed up and spoke at the hearing, even though he was never even sworn in as a witness.  Additionally, the Board went ahead and made new factual findings—including that the Albany job would not impose significantly different burdens than Mr. Piper’s earlier jobs, the conditions of the employment had not changed, and Mr. Piper’s line of work typically requires lengthy travel.  Based on these findings, the Board concluded that the work was suitable and that, without a showing that the employer would not be paying for travel and lodging, Mr. Piper had no good reason to refuse the work. 

The SCOV takes the Board to task in this decision.  First, the SCOV explains in detail how the Board departed from longstanding precedent regarding the proper definition of labor market when it found that the type of work that Mr. Piper did “customarily requires lengthy travel distances.”  The SCOV reminded the Board that the proper scope of the labor market turns mainly on the availability of the individual under consideration.  As the ALJ determined based on its take on the evidence, Albany was “well outside” the labor market for Mr. Piper.  Despite adopting the ALJ’s evidence, the Board came to the opposite conclusion.  The SCOV pointed out that the Board improperly relied on the facts that Mr. Piper was being offered work by the same employer and that Mr. Piper had worked previously under similar conditions when reaching its conclusion that Mr. Piper did not have good cause to refuse the work.  These factors were not relevant to deciding whether the job was within Mr. Piper’s labor market.  According to the SCOV, just because an employee has previously accepted certain work conditions does not mean that those conditions are necessarily suitable to the employee in the future. 

After these explanations, the SCOV summed up that the Board’s true undoing was its decision to take new evidence—contrary to the rules of the governing statute—and then to make the new finding that Mr. Piper’s work customarily involves traveling long distances.  These steps took the Board away from the proper definition of labor market and lead to the incorrect conclusion that the Albany job constituted suitable work.  Just for good measure, the SCOV closed by warning the Board that its failure to follow proper procedure alone would have provided sufficient grounds to grant Mr. Piper a new hearing.  But because the Board came to a clearly erroneous conclusion as a result of the improper procedure, Mr. Piper was spared an additional hearing, and the SCOV handed him a clear win. 

In the end, Mr. Piper is entitled to his unemployment benefits and will not have to go the extra-mile to obtain them.