2014 VT 74


Kelley v.
Department of Labor (Maple Leaf Farm Association, Inc.) (2014-036)
 
2014 VT 74
 
[Filed 18-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 74

 

No. 2014-036

 

Katherine Kelley


Supreme Court


 


 


 


On Appeal from


     v.


Employment Security Board 


 


 


 


 


Department of Labor
(Maple Leaf Farm Association, Inc., 
Employer-Appellant)
 


May Term, 2014


 


 


Anne
  M. Noonan, Chair


 

Lauren K. Peach, Vermont Legal Aid, Inc.,
St. Johnsbury, for Plaintiff-Appellee.
 
Franklin L. Paulino of Bergeron, Paradis & Fitzpatrick,
LLP, Burlington, for 
  Employer-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.
 
 
¶ 1.            
CRAWFORD, J.   This case turns upon a common question
in employment disputes: did the employee jump, or was she pushed?  Employer
Maple Leaf Farm Association, Inc. appeals from a decision of the Employment
Security Board finding that its former employee Katherine Kelley was
involuntarily terminated from her position and therefore eligible for
unemployment compensation benefits.  We affirm.
¶ 2.            
Employer runs an intensive inpatient drug and alcohol treatment
program.  Claimant worked for employer as a part-time treatment counselor
for seven years.  Due to a conflict with a supervisor, claimant resigned
from her position in writing on August 29, 2013.  She stated in her letter
to employer that her last day would be September 19, 2013, and employer allowed
her to continue working.  Four days later, on September 3, employer
terminated her employment and escorted her off the premises. 
¶ 3.            
Claimant applied for unemployment compensation.  The claims
adjudicator determined that she was not entitled to benefits for the first two
weeks after her termination because the accrued vacation pay that employer paid
her during that period was in excess of her weekly benefit amount.[1]  The claims adjudicator further
determined that claimant was not entitled to benefits because she had left
employment voluntarily without good cause attributable to her employer.  
¶ 4.            
Pursuant to 21 V.S.A. § 1348, claimant appealed to a referee who
conducted an administrative hearing.  The referee found that claimant did
not leave her employment voluntarily even though she had tendered her resignation
because employer discharged her during her period of notice.  The referee
found that claimant tendered her resignation on August 29, and that employer
agreed to allow claimant to work until the end of the notice period, September
19.  The referee found nothing in the record to support a finding that
claimant’s discharge was for misconduct.  The referee found that employer
had received a complaint from a patient about claimant, and discharged her for
that reason.  However, it found that claimant had not received any
warnings regarding her performance.  The referee therefore modified the
determination of the claims adjudicator and held that claimant was entitled to
benefits after September 21. 
¶ 5.            
Employer appealed the referee’s decision to the Employment Security
Board, which adopted the referee’s findings and affirmed its conclusions. 
This appeal followed.
¶ 6.            
Our review of decisions by the Employment Security Board is deferential,
as decisions within the expertise of the Board “are presumed to be correct,
valid, and reasonable.”  Bouchard v. Dep’t of Emp’t
& Training, 174 Vt. 588, 589, 816 A.2d 508, 510 (2002) (mem.). 
We will uphold the Board’s findings of fact unless they are clearly erroneous,
and its conclusions if they are supported by the findings.  Id. 
In general, we also defer to the Board’s interpretations of the statutes it is
charged with administering.  Blue v. Dep’t of Labor,
2011 VT 84, ¶ 6, 190 Vt. 228, 27 A.3d 1096.  The record
supports the Board’s findings and conclusions in this case. 
¶ 7.            
Vermont’s Unemployment Compensation Act excludes employees from
receiving benefits if they leave their employment voluntarily.  The
statute provides: 
    (a) An individual
shall be disqualified for benefits: 
   
   . . . .
  (2) For any week benefits are claimed . . . until he or she has
presented evidence to the satisfaction of the Commissioner that he or she has
performed services in employment for a bona fide employer and has had earnings
in excess of six times his or her weekly benefit amount if the Commissioner
finds that such individual is unemployed because:
  (A) He or she has left the employ
of his or her last employing unit voluntarily without good cause attributable
to such employing unit. 
21 V.S.A. §
1344(a).   
¶ 8.            
The Unemployment Compensation Act is a remedial law designed “to remove
economic disabilities and distress resulting from involuntary
unemployment, and to assist those workers who become jobless for reasons
beyond their control.”  Donahue v. Dep’t of Emp’t
Sec., 142 Vt. 351, 354, 454 A.2d 1244, 1246 (1982) (citation omitted). 
Accordingly, “no claimant should be excluded unless the law clearly intends
such an exclusion.”  Jones
v. Dep’t of Emp’t Sec., 140 Vt. 552, 554, 442 A.2d 463, 464 (1982). 
¶ 9.            
The plain meaning of the statute supports claimant’s position. 
Claimant did not “le[ave] the employ” of employer on
August 29, the date that she submitted her resignation letter, because she continued
to work after that date.  21 V.S.A. § 1344(a)(2)(A). 
Rather, she left her employment on September 3, the date that employer
terminated her employment and escorted her off the premises.  This was the
date that the employment relationship was severed, and therefore it is the date
to which we must look to determine if claimant left voluntarily or
involuntarily.  See Trapeni v. Dep’t of Emp’t Sec., 142 Vt. 317,
325, 455 A.2d 329, 333 (1982) (“The term ‘left the employ’ as used in 21 V.S.A.
§ 1344(a)(2)(A) refers only to a severance of the
employment relationship . . . .”).
         
¶ 10.         The
question then is whether claimant quit voluntarily or was fired.  In
determining whether a separation from employment is a discharge or a voluntary
quit, we look to the intent of the parties at the time of the
separation.   See Gale v. Dep’t of Emp’t Sec., 136 Vt. 75, 77,
385 A.2d 1073, 1075 (1978) (examining intent of employer and claimant on date
that claimant stopped working, and holding that claimant did not intend to
voluntarily quit where she told employer that she could not work its requested
hours); Ladeau v. Dep’t of Emp’t Sec., 134 Vt. 387, 388-89, 359 A.3d
648, 650 (1976) (looking to intent of parties on date of termination to
determine that claimant was fired and did not voluntarily quit).  Here,
the record supports the finding of the referee and the Board that claimant’s
intent on September 3 was to work for another two and a half weeks and that
employer previously had agreed that she could do so.  Were it not for
employer’s action on September 3, the employment relationship would have
continued until September 19, and claimant would have voluntarily left her
employment on that date.  The record also shows that employer’s intent on
September 3 was to fire claimant.  A representative of employer testified
that after claimant gave her notice, employer received a complaint from a
client, which led employer to conclude that “it would be disruptive to have her
work out her notice.”  Employer therefore decided to end claimant’s
employment immediately. Employer’s action in escorting claimant from the
premises was consistent with a discharge rather than a voluntary resignation.
¶ 11.         This
case is distinguishable from MacDonald v. Department of Employment Security,
136 Vt. 184, 385 A.2d 1117 (1978), cited by employer in support of its position
that claimant had no right to keep working once she resigned.  In MacDonald,
the claimant was employed as a waitress at a hotel.  She gave her employer
two weeks’ notice.  The employer told her that no notice was required or
customary in the trade, and she could either remain employed or leave
immediately.  She left immediately.  We affirmed the Board’s denial
of unemployment benefits to the claimant on the ground that she had left
voluntarily without good cause attributable to her employer.  Id.
at 186, 385 A.2d at 1118.  We held that “[a]bsent
an employment contract provision or a trade usage as
to notice to quit, an employee’s options do not include a right to specify a
future effective date of termination.  A voluntary quit is without good
cause if it is conditioned in a manner not within the options open to the
employee.”  Id. 
¶ 12.         MacDonald
differs from this case in two important respects.   First, in this
case, although employer recognized that it did not require at-will employees to
provide advance notice prior to ending their employment, employer had a policy
that asked employees to give two weeks’ written notice.  Second, after
claimant gave her written notice, employer agreed to allow claimant to continue
working until September 19.  Thus, claimant was in a different position
than the employee in MacDonald, who had no option to continue working
through the notice period.        
¶ 13.         Employer
argues that we should follow decisions of other states holding that a voluntary
resignation that is followed by a period of notice to the employer voluntarily
severs the employment relationship upon its tender.  See, e.g., Guy
Gannett Publ’g Co. v. Me. Emp’t Sec. Comm’n, 317 A.2d 183, 187 (Me. 1974)
(“A resignation, when voluntary, is essentially an unconditional event the
legal significance and finality of which cannot be altered by the measure of
time between the employee’s notice and the actual date of departure from the
job.”).  Gannett and the other cases relied upon by employer
involve circumstances in which an employee voluntarily resigned but then
attempted to withdraw the resignation, and the employer refused to reinstate
the employee but paid the employee until the end of the notice period.  Id. at 184.  Under such circumstances, the
employer has taken no action to terminate the employee prior to the effective
date of resignation, and it makes sense to consider the separation to be
voluntary.  By contrast, employer here fired claimant prior to the end of
the notice period and did not pay her wages after the date that she left. 
The majority of courts in other states have ruled that an employee who is
discharged before the effective date of her resignation has not left work
voluntarily and is not disqualified from receiving unemployment compensation
benefits on that basis.  See Porter v. Fla. Unemp’t Appeals Comm’n,
1 So. 3d 1101, 1103-04 (Fla. Dist. Ct. App. 2009) (listing cases).[2] 
¶ 14.         Employer
asserts that it did pay claimant wages to the end of the notice period,
rendering her separation voluntary.  See Gannett, 317 A.2d at 187
(holding that employee who resigned left voluntarily where employer accepted
resignation, told employee not to come to work anymore, and paid employee
through end of notice period).  Employer apparently is referring to the
accrued vacation pay that was paid to claimant after she left employment. 
Employer argues that the statutory definition of “wages” includes vacation pay.
 See 21 V.S.A. § 1301(12) (“ ‘Wages’ means all remuneration paid
for services rendered by an individual, including . . . the
cash value of all remuneration paid in any medium other than cash.”).  The
Board disagreed with this interpretation of the statute, distinguishing between
wages and annual leave.  Employer has not shown that the Board’s
interpretation of the statute was erroneous as a matter of law.  Blue, 2011 VT 84, ¶ 6.   Further,
nothing in the record shows that claimant’s vacation pay was remuneration for
the period from September 3 to September 19.  Rather, it appears that
claimant accrued the vacation pay during her previous years of service and that
it was employer’s practice to pay out the accrued vacation time in addition to
wages for any remaining hours worked.  As the Board noted, this is a
typical policy for employers.  Under these circumstances, we cannot agree
that employer’s payment of vacation pay to claimant was equivalent to paying
her wages for the remainder of the notice period.
¶ 15.         Finally,
we reject employer’s contention that claimant’s eligibility for unemployment
benefits is limited to the period between the date that she actually left her
employment and the effective date of her resignation.  The version of
Vermont’s Unemployment Compensation Act in effect at the time of claimant’s
termination did not limit eligibility under these circumstances.  See 21
V.S.A. § 1340 (limiting duration of unemployment benefits to 26 times the
weekly benefit amount or 46 percent of total wages paid to individual during
base period, whichever is less, and establishing further limits where
individual is discharged for misconduct).  Although the Legislature has
since limited eligibility for unemployment compensation to the notice period
when an employee tenders her resignation but is discharged prior to the
effective date of that resignation, see 2014, No. 173 (Adj. Sess.), § 5
(codified as amended at 21 V.S.A. § 1343), we cannot conclude that prior
to this amendment the Act precluded claimant from receiving benefits beyond
that date.  See Jones, 140 Vt. at 554, 442 A.2d at 464 (“[N]o
claimant should be excluded unless the law clearly intends such an
exclusion.”).  The record shows that claimant did not leave her employment
voluntarily.  Therefore, she is not disqualified from receiving benefits
under 21 V.S.A. § 1344(a)(2)(A). 
  
           
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 Claimant did not appeal the decision regarding vacation pay. 


[2]
 As the Porter court noted, one line of decisions holds that where
an employee who has given notice of resignation is terminated before her
resignation becomes effective, she has not left work voluntarily and is
entitled to benefits even for the period following her intended date of
departure.  Porter, 1 So. 3d at 1103-04; see also Coleman v.
Miss. Emp’t Sec. Comm’n, 662 So.2d 626, 628 (Miss. 1995); Dillard Dep’t
Stores, Inc. v. Polinsky, 530 N.W.2d 637, 643 (Neb. 1995); W. Jordan v.
Morrison, 656 P.2d 445, 446-47 (Utah 1982); Vieweg v. Gatson, 546
S.E.2d 267, 270-71 (W. Va. 2000).  Another line of decisions holds that an
employee who is discharged prior to the effective date of her resignation has
not voluntarily left employment, but the employee is entitled to unemployment
compensation benefits only for the period between the date of discharge and the
effective date of resignation.  Diringer v. Indus. Comm’n, 712 P.2d
1091, 1091-92 (Colo. App. 1985); Mason v. Donnelly Club, 21 P.3d 903,
908 (Idaho 2001); Redline Express, Inc. v. State Emp’t Sec. Bd. of Rev.,
11 P.3d 85, 89 (Kan. Ct. App. 2000); Stephen’s Nu-Ad, Inc. v. Green, 423
N.W.2d 625, 627-29 (Mich. Ct. App. 1988); Ennis v. Emp’t Div., 587 P.2d
102, 103 (Or. Ct. App. 1978); Amado v. Unemp’t Comp. Bd.
of Rev., 110 A.2d 807, 808 (Pa. Super. Ct. 1955). 
Although we conclude that Vermont’s statute is inconsistent with the latter
cases holding that eligibility for benefits is limited to the period between
the date of discharge and the effective date of resignation, we agree with the
consensus that a discharge during the notice period is not a voluntary quit.



