Thursday, August 25, 2011

Breaking Away

Blue v. Dept. of Labor, 2011 VT 84

One of the great lessons that we have yet to learn from academia is the benefit of a sabbatical.  Who among us would not benefit by taking a break from our jobs and exploring something else for awhile.  Wouldn’t we all be more productive if we could take a season to explore something else before we went back to the widget factory or the litigation production studio we call home?  Unfortunately, for most this is not an option.  Mortgages, children who need to eat on a daily basis, and account depleting devotions to collecting back issues of Carl Barks’ 1950s work on the Donald Duck comic series leave us with precious little savings  Or maybe I am speaking for myself. 

Our heroine today felt a similar call of the wild.  After four years of slugging it out in the trenches of Hickok & Boardman Realty, she decided to take a three-month sabbatical to participate in a cross-country bike ride for multiple sclerosis, a disease that had claimed her father six years earlier.  Not wanting to call in each day of the ride with a “sore throat again,” claimant sought an unpaid leave of absence from her job.  According to claimant, her supervisor granted this leave but told her that it was an exception to the rule.  Supervisor remembers things differently.  She remembers telling claimant that the company did not allow such sabbaticals and that when claimant left, her job would not necessarily be waiting for her when she got back.

And in fact it was not.  H & B hired temporary employees during claimant’s absence (two interns and a part-time temporary employee).  When claimant called at the end of her bike ride, she was told that she had been let go and a temporary employee had been given her job.  Claimant then filed for unemployment, which H & B opposed because, it argued, claimant voluntarily left her position making her ineligible.  The hearing officer and employment board bought into this argument, and claimant appealed.

On appeal, the primary question is whether claimant left her job when she took her sabbatical or whether H & B terminated her sometime during the leave.  In the first instance, claimant would not be eligible for unemployment.  In the latter, she would.

The SCOV starts with the basic framework that governs unemployment claims.  The initial burden lies with the employer to show that employee voluntarily left her job (“I quit”).  It then falls to employee to prove that she left for good cause attributable to the employer (“I quit because you have made me so completely miserable”).  This shifting of burdens is important in this case because the SCOV determines that the initial hearing officer never made a finding on this first burden. 

The SCOV also finds that the meaning of the term “left the employ” is not supported by the facts here because the term connotes a complete and bona fide severance of the employment relationship.  Merely stepping out to take a three-month bike trip at the end of which you anticipate returning is neither complete nor bona fide. 

The SCOV goes out of its way to chide the Employment Board and the hearing officer for its opinion using rather sharp language to bring attention to its errors.  While the SCOV does not say as much, the tone indicates that the SCOV is delivering a broader correction to the Board that may have larger implications on future claims.  In particular, the SCOV ends the case with a reversal and remand and a recommendation to the Board and hearing officer below to brush up on the applicable cases in this area, a clear indication that the SCOV is dissatisfied with their work product.

So claimant wins and will receive her unemployment, although not her old job.  We wish her the best of luck and to keep on pedaling.

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