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DLLR's Unemployment Insurance Appeals

 

Maryland Unemployment Decisions Digest

 

FOREWORD

When an individual files for unemployment insurance benefits with the Maryland Department of Labor, Licensing and Regulation, determinations of both monetary and nonmonetary eligibility are issued pursuant to the Maryland Annotated Code, Labor and Employment Article, Title 8, Unemployment Insurance. The monetary determination informs the claimant which wages are considered in establishing the claimant's weekly benefit amount. The nonmonetary determination addresses the claimant's eligibility for benefits based on a number of factors, most notably the reason for the claimant's separation from employment and the claimant's availability for work.

Section 8-503 of the law provides that an individual who files a claim for benefits or an employer entitled to notice of the determination of the claim may file an appeal to the Lower Appeals Division from both monetary and nonmonetary determinations. This first level of appeal is heard by a hearing examiner. Section 8-5A-05 of the unemployment insurance law provides that the Board of Appeals shall hear and decided appeals from decisions of the Lower Appeals Division and claims for benefits referred by the Secretary under Section 8-5A-09 of the law.

Upon receipt of the hearing examiner's decision, the claimant or the employer has a right to file a further appeal or may petition for further review, to the three-member Board of Appeals. The Board is empowered to review the hearing examiner's decision on the record, to hold a de novo hearing or to hold an additional hearing. The Board's written decision is appealable to the Circuit Court, but the Court's review is limited to the record. The Board and the hearing examiners hear and decide over 30,000 cases each year.

Pursuant to the Code of Maryland Regulations (COMAR), Section 09.32.06.05, decisions of the Board of Appeals designated as precedent by the Board constitute legal precedent for the hearing examiner's decisions. The decisions whose summaries are included in this Digest have been so designated by the Board.

In response to the growing volume of appealed cases and the corresponding number of requests for information about Board precedents, the first Digest of Maryland Unemployment Insurance Decisions was issued in 1985. It was prepared both as a tool to assist the hearing examiners and also as a tool for claimants, employers and their representatives to use in preparing for and presenting unemployment insurance cases. An update was issued in 1987. After 1987, many changes in the law were enacted, including the recodification of the Unemployment Insurance statute. In 1996, in order to ensure that the Digest remained a viable product, a completely revised Digest was published in partnership with the Maryland Institute for Continuing Professional education of Lawyers, Inc. (MICPEL). The passage of time, the statutory separation of the Board of Appeals from the hearing examiners with the creation of the Lower Appeals Division, changes in the Maryland Unemployment Insurance Law and new COMAR regulations have necessitated some revisions.

Although the Digest has been reorganized, the basic format remains the same. The Digest contains summaries of Board of Appeals precedent decisions on those sections of the law most used by the hearing examiners. Each section of the law contains an introductory portion that cites important court cases as well. In addition, there is a separate section on court cases. Each section has its own Table of Contents, in which the issues which most often arise are set out analytically.
The full text of each Board decision included in the Digest may be acquired at the office of the Board of Appeals, located at 1100 North Eutaw Street, Baltimore, Maryland, 21201, Room 515. The Board's citation will indicate whether the case was reviewed on the record (BR) or whether a new hearing was held (BH or SE). The link to the Table of Cases can be found at the end of the Table of Contents. Cases which are currently available online are highlighted and underlined.

All reference in the Digest to the statute use the current appropriate statutory citation, even for decisions that were written prior to the change.

There are many individuals who have worked on the current update of this Digest. First and foremost, we thank L. Paul Snyder, Jr., the Board's Appeals Counsel who did much of the writing of the new summaries and Kimberly Kramer-Zamenski, the Board's Administrative Officer II, who coordinated and oversaw the many phases of this project. Without their dedication and diligence this project would probably never reached completion. In addition we acknowledge the following individuals who all contributed in various ways: Judith Singleton, whose original hard work on the first edition of the Digest provided the excellent foundation upon which each successive revision has been built. We also thank Regina Tabackman, for her efforts on the 1996 edition. In addition, we acknowledge the following individuals who all contributed in various ways: Thomas W. Keech, Hazel Warnick, Paul G. Zimmermann, the late A. Grey Staples, Jr., John T. McGucken, Andrew Auerbach, Alice Brogden, Karen Mee, Michele Williams and the other members of the Board of Appeals staff, Rosemary Dirton, Yolanda Jones and the late Sherrie Pittman, whose hard work and constant support not only made this project possible, but who have for years performed excellent work for the citizens of the Maryland.

Board of Appeals
Donna Watts-Lamont, Chairperson
Clayton A. Mitchell, Sr., Associate Member
Eileen Rehrmann., Associate Member
March, 2011

 
Table of Contents
 
COVERED EMPLOYMENT - SECTIONS 8-101(j), 8-201 ET SEQ.
  INTRODUCTION
  I.  IN GENERAL
    A. Scope of Section 8-201
B. Relation to Section 8-803
  II. INDEPENDENT CONTRACTOR
    A. In General
B. Element: Freedom from Control and Direction
C. Element: Outside Usual Course or Places of Business
D. Element: Customarily Engaged in Independently Established Trade, Occupation or Profession
E. Volunteer Test Subjects
F. Cab Drivers
  III. STUDENT OR INTERN STATUS
    A. In General
    B. Work-Study Program
  IV. COMMISSION SALES
  V. FAMILY RELATIONSHIP
  VI. POLICY MAKING POSITIONS
  VII. EMPLOYEES OF PRIVATE CHURCH-RELATED SCHOOLS
    A. Schools Which Are Not Separately Incorporated
B. Schools Which Are Separately Incorporated
C. Operation by "Church"
D. Operation "Primarily for Religious Purposes
E. Services of Members of a Religious Order
WAGES - SECTION 8-101(z)
  INTRODUCTION
  I. WAGES DEFINED
  II. TYPES OF PAYMENTS
    A. Bonuses
B. Credit Toward Purchase of Personal Property
C. Court-Awarded Damages
D. Expenses
E. Working to Repay a Debt
F. Wage Amount Reported Incorrectly to Another Agency
G. Income from Tips
UNEMPLOYMENT STATUS - SECTION 8-801
INTRODUCTION
I. IN GENERAL
A. Separation Not Required
B. Partial Unemployment
II. PERFORMANCE OF SERVICES FOR WHICH WAGES ARE PAYABLE
A. Performance of Less Than Full-Time Work
B. Performance of Services
C. Wages Payable
D. Back Pay and Liquidated Damages As Wages
III. SELF-EMPLOYMENT AND CORPORATE OWNERSHIP
A. Self-Employment
B. Corporate Officer Status
C. Burden of Proof
D. Ownership Status
MONETARY ELIGIBILITY - SECTIONS 8-802, 8-803
INTRODUCTION
I. IN GENERAL
A. Wages Used in Determining Monetary Eligibility
B. Determination of Benefit Year
II. CLAIMS FOR BENEFITS
III. ELIGIBILITY FOR PARTIAL BENEFITS
A. Requirement: "Unemployment" or "Partial Unemployment"
B. Determining Eligibility
IV. SCHEDULE OF BENEFITS
V. QUALIFYING WAGES UNDER SECTION 8-802
TIMELY AND VALID APPEAL - SECTIONS 8-806, 8-510
INTRODUCTION
I. IN GENERAL
A. Actual Notice of Determination
B. Mailing of Appeal
C. Burden of Proof
II. GOOD CAUSE
A. Good Cause Determination by Hearing Examiner
B. Late Receipt of Determination or Decision
C. Improper Address
D. Presumption of Delivery
E. Inability to Comprehend Determination
F. Improper Notice
G. Illness or Other Emergency
H. Appeal Not Taken or Lost
I. Incorrect or Misleading Information from Agency
III. CIRCUMSTANCES IN WHICH GOOD CAUSE IS NOT SUPPORTED
A. Confusion or Misunderstanding
B. Relocation Without Notice
C. Inaction by Authorized Representative
D. Failure to Act Upon Actual Notice
IV. APPEALS TO THE BOARD OF APPEALS
A. Good Cause Not Recognized
B. Improper Notice
RECOVERY OF BENEFITS - SECTION 8-809
INTRODUCTION
I. IN GENERAL
A. Time Limits on Recovery
B. Sufficiency of Notice
C. Overpayment Where Fraud is Not Found
II. RETROACTIVE WAGES
A. Back Pay
B. Damages As Opposed to Back Pay4
C. Relation to Section 8-801
FRAUD - SECTIONS 8-809(b), 8-1301, 8-1305(b)(2)
INTRODUCTION
I. IN GENERAL
A. Burden of Proof
B. Element of Intent
II. ACTIONS WHICH CONSTITUTE FRAUD
A. Failure to Report Wages
B. Endorsing Benefit Checks
C. Submission of False Documents
D. False Statement
FILING PROPER CLAIMS - SECTION 8-901
INTRODUCTION
I. IN GENERAL
A. Claim Weeks Prior to Registration for Work
B. Claims Filed by Representative
C. Presumption of Timely Delivery to Agency
D. Effect of Written Instructions
E. Grace Period for Filing Claims
F. Timely Attempts to Correct Errors
1. Timely Communication to Agency
2. Failure to Failure Agency Instructions
G. Removal from Claim Status
II. MITIGATING FACTORS
A. Agency Error: Waiver of Section 8-901 Requirements
B. Specific Agency Directions
C. Employer's Failure to Provide Documents
ABLE TO WORK, AVAILABLE FOR WORK AND ACTIVELY SEEKING WORK - SECTIONS 8-903, 8-904, 8-907
INTRODUCTION
I. IN GENERAL
A. Definition
B. Exemptions
1. Short-Term Layoffs
2. Approved Training Programs
3. Part-Time Employment
C. Scope of Section 8-903 Penalty
D. Effect of Private Agreements
E. Temporary Agencies
II. ABILITY TO WORK - HEALTH
A. Physical Restrictions and Limitations
1. In General
2. Avoidance of Stress or Strain
3. Physical Inability to Do Work
B. Pregnancy
C. Chronic Health Problems
D. Temporary Illness
E. Health Problems Not Affecting Job Performance
F. Proof Required to Lift Penalty
1. Medical Release
2. Other Evidence
III. AVAILABILITY FOR WORK
A. In General
B. Work-Related Issues
1. Hours of Work
2. Restrictions Caused by Other Employment
a. Accepting Part-Time Work
b. Self-Employment
c. Corporate Officer
3. Leave of Absence
a. Voluntary
b. Involuntary
4. Future Employment
5. Isolated, Temporary Activity
C. Personal Issues
1. Family Matters
a. Child Care
b. Illness of Child
2. Self-Imposed Restrictions
3. Transportation
4. Effect of Relocation of Claimant
D. Attendance at School
1. Limited Course of Study
2. Flexible Schedule
IV. ACTIVE SEARCH FOR WORK
A. Reasonable Search
1. In General
2. Job Contacts Required
3. Transportation
4. Geographic Limitations
B. Contractual Agreement Not to Seek Work
EMPLOYEES OF EDUCATIONAL INSTITUTIONS - SECTION 8-909
INTRODUCTION
I. IN GENERAL
A. Scope of Section 8-909 Disqualification
B. Applicability of Section 8-909(b)
C. Applicability of Section 8-909(c)
D. Educational Institution and Educational Service Agency Under Section 8-909
II. REASONABLE ASSURANCE
A. In General
B. Abolishment of Position or Termination
C. Leave of Absence
D. Substitute Teachers
E. Twelve-Month Employees
III. VACATION OR HOLIDAY RECESS
VOLUNTARY QUIT - SECTION 8-1001
INTRODUCTION
I. WHAT IS A VOLUNTARY QUIT?
A. Intent to Quit
1. In General
2. Intent Shown by Words
3. Intent Shown by Actions
4. Resignation in Lieu of Discharge
5. Resignation in Lieu of Facing Charges
B. Refusal of Transfer or Demotion
C. Leave of Absence
D. Sale of Own Business
E. Temporary Employment Agencies
F. Employees on Strike
G. Effect of Offering or Revoking a Resignation
H. Discharge Prior to Effective Date of a Resignation
I. Constructive Voluntary Quit
1. Voluntary Action by Employee
2. Requiring Discharge by Employer
J. "Buy-Out" Offers and Voluntary Layoffs
II. GOOD CAUSE - IN GENERAL
A. Connection with the Work
1. Overall Conditions
2. Health
3. Distance
4. Part-Time Work
B. Specific Statutory Exclusions
1. Accompanying or Joining a Spouse
2. Attending an Educational Institution
C. Religious Beliefs
III. VALID CIRCUMSTANCES - IN GENERAL
A. Substantial Cause Connected with the Work
B. Necessitous or Compelling Other Reason
1. Employee's Health
2. Health of Another Individual
IV. BURDEN OF PROOF
A. In General
B. When Health Reasons Are at Issue
C. Regarding Reasonableness of Employer's Actions
V. GOOD CAUSE OR VALID CIRCUMSTANCES?
A. Actions of the Employer
1. Modifications of the Employment Contract or Agreement
a. Detrimental Changes
(1) In General
(2) Change in Ownership
b. Remuneration
(1) Pay Rate
(a) Wages Not Paid
(b) Wages Paid Late
(c) Changes in Method or Amount of Payment
(2) Promise of a Raise
(3) Deductions from Wages
(4) Indemnification of Employer for Losses or Shortages
(5) Reduction of Benefits
c. Changes in Hours or Schedule
(1) In General
(2) Long Hours and Overtime
(3) Reduction in Hours
d. Change in Job Location
e. Promotions and Demotions
f. Change in Job Duties Only
2. Discipline and Disciplinary Methods
a. In General
b. Rude or Abusive Discipline
c. Forced Apologies
3. Discrimination and Harassment
a. Derogatory Racial Remarks
b. Sexual Harassment
c. Comparative Treatment
4. Interference with Employee's Work
5. Encroachment into Employee's Personal Life
6. Employer's Business Practices
7. Drug Screening
B. Conditions of Employment
1. General Dissatisfaction with the Job
2. Hazardous Conditions
3. Threats, Assaults and Crime
a. By Employer
b. By Coworkers
4. Instability of Job or Business
a. Job
b. Business
5. Leaving to Accept a Better Job
6. Leaving Part-Time Work
C. Personal Problems and Beliefs
1. In General
a. Necessitous or Compelling
b. No Reasonable Alternative
2. Transportation
3. Distance from Work
4. Health Problems
a. In General
b. Evidentiary Requirements
c. Reasonable Alternatives
d. Health of Another Individual
e. Pregnancy
5. Babysitting Problems
6. Incarceration
7. Leaving to Accompany or Join a Spouse
DISCHARGE - SECTIONS 8-1002, 8-1002.1, 8-1003
INTRODUCTION 
I. WHAT IS A DISCHARGE?
A. What Constitutes a Discharge?
B. Discharge or Quit?
1. In General
2. Resignation in Lieu of Discharge or to Avoid Facing Charges
3. Failure to File Grievance or Appeal
4. Claimant Accelerates Time of Discharge
5. Employer Accelerates Time of Quit
6. Voluntary Quit or Discharge?
a. Loss of Ability to Drive
b. Failure to Meet Occupational Requirements
(1) Security Clearance
(2) Required Courses/Certification
7. Retirement Incentives
C. Leave of Absence
D. Discharge from a Temporary Agency
II. MISCONDUCT OR GROSS MISCONDUCT?
A. In General
B. Intent or Willfulness
1. Gross Misconduct Found
2. Misconduct Found
3. No Misconduct Found
C. Misunderstandings
D. Isolated Incidents
E. Trivial or Inconsequential Act or Comment
F. Cumulative Effect of Incidents
G. Effect of Warnings and Condonation
1. Warnings
2. Condonation
H. Discharge Motivated by Discrimination
III. AGGRAVATED MISCONDUCT
IV. CONNECTED WITH THE WORK
A. Breach of Duty
1. Police Officers
2. Correctional Officers and Security Personnel
3. Fire Fighters
4. Other Employees
B. Off Duty Activity
C. Criminal Activities and Convictions
D. Conduct Prior to Employment
E. Conduct After Discharge
V. BURDEN OF PROOF
A. In General - On the Employer
B. When the Burden Shifts to the Employee
C. Employer's Failure to Follow Technicalities of Its Own Discharge Procedures
VI. FAILURE TO PERFORM
A. Failure to Perform Job Duties
1. Inadequate Job Performance - In General
2. Refusal to Perform; Insubordination
a. Refusal to Obey a Direct Order or Instruction
(1) Gross Misconduct Found
(2) No Misconduct Found
b. Refusal to Do One's Job
c. Refusal Due to Belief of Danger or Hazards
d. Refusal to Work Overtime
3. Inability to Perform
a. Inefficiency or Incompetence
b. Physical or Mental Inability to Work
4. Negligence
a. Gross Misconduct
b. Misconduct
c. Cash Shortages
d. Accidents
e. Mistakes
5. Alterations of Conditions of Employment
B. Failure to Follow Rules and Procedures
1. In General
2. Importance of Policy Violations
3. Illegal or Unethical Requirements
4. Unreasonable Requirements
VII. MISBEHAVIOR OR POOR ATTITUDE ON THE JOB
A. Rudeness or Poor Attitude
1. Toward Employer's Clients or Customers
2. Toward Supervisor
a. Gross Misconduct Found
b. Misconduct Found
c. No Misconduct Found
3. Toward Coworkers
a. Gross Misconduct Found
b. Misconduct Found
c. No Misconduct Found
B. Disruptive Behavior
1. In General
2. Profane or Abusive Language
3. Horseplay
C. Sexual Harassment
D. Sleeping on the Job
1. In General
2. Mitigating Circumstances
E. Cooperation with Internal Investigation
VIII. ILLEGAL, DISHONEST, FRAUDULENT OR UNETHICAL CONDUCT ON THE JOB
A. Assaults and Threats
1. Threats
a. In General
b. Use of Weapons
2. Assaults
a. In General
b. Self-Defense
3. Patient Abuse
B. Alteration of Time Cards
1. Gross Misconduct Found
2. Misconduct Found
3. No Misconduct Found
C. Cash Shortages
1. In General
2. Agreement to Indemnify Employer
D. Theft
1. From Employer
2. From Customers or Coworkers
3. Misappropriation of Employer's Property
E. Destruction of Property
1. Employer's Property
2. Customer's or Client's Property
3. Coworker's Property
F. Competition with Employer's Business
G. Misuse of Position
H. Falsification of Employment Application
I. Falsification of Other Work Records
J. Lying to Employer
K. Miscellaneous
IX. ATTENDANCE PROBLEMS
A. Absenteeism and Lateness
1. In General
2. Chronic or Repeated
3. Failure to Notify Employer
4. Effect of Warnings
B. Excuses
1. In General
2. Illness and Disability
3. Heightened Duty to Report to Work
4. Incarceration
5. Transportation Problems
6. Personal or Family Problems
C. Leaving Work Early or Walking Off Job
X. ALCOHOL AND DRUG USE
A. On Work Premises
B. Off Work Premises
C. Alcoholism As a Disease
D. Effect of Treatment
1. Duty to Seek Treatment
2. Cooperation with Treatment Program
E. Effect on Job Performance
1. Alcohol
2. Drugs
F. Alcohol and Drug Screenings
1. Mandatory, Random Testing
2. Required Due to Employee's Conduct
3. Employer's Obligation Under Health-General Article
4. Validity of Test
XI. EXERCISE OF EMPLOYEE'S RIGHTS
A. Right to Respond to Job Conditions
1. Responding to Evaluations
2. Requesting Change in Work Status
3. Refusing to Reimburse for Cash Shortages
4. Filing Charges Against Employer
a. Discrimination
b. Other
5. Questioning Employer's Action or Inaction
B. Religious Beliefs
C. Right to Seek Other Employment
1. For Oneself
2. For Others
D. Strikes
E. Other
XII. APPLICATION OF PENALTY
A. Discharge from Noncovered Employment
B. Extent of Penalty
FAILURE TO APPLY FOR OR ACCEPT SUITABLE WORK - SECTION 8-1005
  INTRODUCTION
I. IN GENERAL
A. Applicability of Section 8-1005
B. Scope of Section 8-1005 Penalty
C. Relation to Section 8-1001 Penalty for the Same Conduct
II. OFFER OF WORK
A. In General
B. Former Work
C. Temporary Work
D. Offer Withdrawn
E. Offer Never Made
III. DETERMINATION OF SUITABILITY
A. In General
B. Demands of Job
C. Distance and Transportation
D. Labor Disputes
E. Rate of Pay
F. Hearing Examiner's Authority to Determine
G. Part-Time, Stopgap Job
IV. DETERMINATION OF GOOD CAUSE FOR REFUSAL
A. Temporary Employment
B. Illness
V. MITIGATING FACTORS
A. Seasonal or Temporary Work
B. Rate of Pay
C. Transportation
VI. FAILURE TO APPLY FOR WORK
A. Applying Later Than Directed
B. Missing Pre-Employment Test
RETIREMENT PAYMENTS - SECTION 8-1008
INTRODUCTION
I. IN GENERAL
A. Payments Which Constitute Retirement Payments
B. Payments Which Do Not Constitute Retirement Payments
C. Contributory Pensions and Proration
D. Noncontributory Pensions
E. Dates of Disqualification
F. Requirement That Payment Be Received
G. Divorce Decree Affecting Amount
II. LUMP SUM PAYMENTS
A. Defined
B. Paid Due to a Layoff or Shutdown
C. Paid for Reasons Other Than a Layoff or Shutdown
III. BASE PERIOD EMPLOYER
SEVERANCE PAY, DISMISSAL PAYMENT OR WAGES IN LIEU OF NOTICE - SECTION 8-1009
INTRODUCTION
I. IN GENERAL
A. Extent of Disqualification
B. Payments Which Constitute Severance Pay
C. Payments Which Do Not Constitute Severance Pay
II. ABOLISHMENT OF JOB
ATTORNEY GENERAL'S APPENDIX - REPORTED CASES - MARYLAND UNEMPLOYMENT INSURANCE LAW
Judicial Review of Unemployment Insurance Determinations
LE § 8-101. Definitions.
LE § 8-102. Legislative Findings and Policy.
LE § 8-205. Independent Contractors.
LE § 8-208. Charitable, Educational, Not for Profit, and Religious Organizations
LE § 8-209. Commission Sales.
LE § 8-801. Unemployment Status.
LE § 8-802. Wages for Covered Employment.
LE § 8-903. Ability to Work and Availability for Work.
I. Availability for Work.
II. Actively Seeking Work.
LE § 8-1001. Voluntarily Leaving Work.
I. Statutory Requirement of Intent.
II. Constructive Voluntary Leaving.
III. Good Cause or Valid Circumstances.
IV. Approved Job Training.
LE § 8-1002. Gross Misconduct.
LE § 8-1003. Misconduct.
LE § 8-1005. Failure to Apply for or Accept Suitable Work.
LE § 8-1007. Holiday or Vacation Pay.
LE § 8-1008. Retirement Payments.
LE § 8-1009. Severance Pay.
LE § 8-1302. Miscellaneous Acts of Employers.
TABLE OF AUTHORITIES
TABLE OF CASES