Failure to Apply for or Accept Suitable Work - Section 8-1005 - Maryland Unemployment Decisions Digest - Appeals
The provisions dealing with failure to apply for or accept work are located at Section 8-1005 of the Labor and Employment Article of the Maryland Annotated Code
Section 8-1005(a)(1) provides that a claimant may be disqualified from receiving benefits if the claimant, without good cause, has failed to: (1) apply for available, suitable work when directed to do so; (2) accept suitable work when offered; or (3) return to usual self-employment when directed to do so. The maximum penalty for refusing suitable work is that benefits will be denied until the claimant is reemployed and earns at least ten times his weekly benefit amount in covered employment. If there are mitigating circumstances involved in the claimant's refusal of suitable work, the claimant could receive a lesser penalty which consists of a five to ten week denial of benefits.
If a claimant receiving unemployment insurance benefits fails to accept an offer of work, the first issue is whether or not the employer made a bona fide offer of work. Generally, the Board has applied a job refusal disqualification under Section 8-1005 only to actual job offers of specific jobs with stated salaries, duties and starting dates. However, where the employer wrote a letter to each striking employee requesting that the employee return to work, the Board held that the employer made a bona fide job offer despite the fact that the letter did not mention any specific duties, salaries or working conditions. The Board reasoned that the striking employees in that case were well aware of the salaries and duties of the jobs offered and the fact that the work started immediately. The Board held that the work was suitable and disqualified the claimants who refused the offer from receiving benefits. The Circuit Court and Court of Special Appeals affirmed the Board. Adams v. Cambridge Wire Cloth Company, 68 Md. App. 666, 515 A.2d 492 (1986), cert. denied, Adams v. Cambridge Wire Cloth Company, 308 Md. 382, 519 A.2d 1283 (1987).
If the employer makes a bona fide offer of work, the next issue is whether or not the work is suitable. Section 8-1005 requires that the following factors be considered in determining whether or not work offered is suitable:
- (1) the degree of risk involved to the health, morals and safety of the individual;
- (2) the experience, previous earnings, previous training and physical fitness of the individual;
- (3) the length of unemployment of the individual and the prospects for securing local work in the individual's usual occupation; and
- (4) the distance of available work from the individual's residence.
Section 8-1005(b)(2) provides that work is not considered suitable if:
- (1) the position offered is vacant as a direct result of a strike, lockout or other labor dispute;
- (2) the hours, wages or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or
- (3) as a condition of being employed, the individual would be required to join a company union or resign from or refrain from joining any bona fide labor organization.
The Court of Appeals has held that the determination of suitable work is a matter within the expertise of the administrative agency and is rarely subject to reversal by a court. Barley v. Maryland Department of Employment Security, 242 Md. 102, 218 A.2d 24 (1966).
Even if a job is determined to be suitable, the claimant may have "good cause" for refusing to apply for or accept it. The Board has held that a claimant who refused temporary work in order to interview for permanent work had good cause for the refusal. Also, the Board has held that when a claimant was given only two hours' notice of temporary work, the claimant's refusal was for good cause.
A claimant's refusal of suitable work may not be for good cause, but there may be mitigating factors which warrant a reduced penalty. For example, when a claimant refused an offer of otherwise suitable work that was temporary and for one-third fewer hours than the claimant's previous employment, the Board held that a minimum disqualification was appropriate. Likewise, where the claimant had been unemployed a short time and refused suitable work that paid $1.56 per hour less than his previous work, the Board held that a minimum penalty was appropriate.
In order to have a claimant be disqualified under Section 8-1005, the employer must report the claimant's refusal of available, suitable work. COMAR 09.32.01.15-1 states that if an employer offers employment to an unemployed individual and the individual refuses the offer, the employer shall notify the Secretary in writing within 15 days after the refusal in order for the refusal to be considered in determining whether the individual is disqualified from receiving benefits.
Failure to Apply for or Accept Suitable Work - Section 8-1005
I. In General
A. Applicability of Section 8-1005
Where the claimant was hired, but where he informed the employer, prior to the first day of work, that he was not going to take the job, the claimant's actions constituted a refusal of work under Section 8-1005 and not a voluntary quit under Section 8-1001. Spiker v. Dry Wood, 871-BR-85.
The claimant's disqualification for failing to accept suitable work was incorrect where the claimant was not in claim status at the time of his separation from the employer. The issue of the claimant's leaving employment is more appropriately decided under Sections 8-1001, 8-1002 or 8-1003. The claimant did not fail to accept suitable work within the meaning of Section 8-1005. Burker v. Turner's Taxi, Inc., 354-BR-89.
B. Scope of Section 8-1005 Penalty
The penalty to be imposed for refusing to accept suitable work under Section 8-1005 may be activated whether the work is offered to the claimant by the agency itself or by a private employer. Adams, et al. v. Cambridge Wire Cloth Company, 264-BR-82.
However, the disqualification for refusing to apply for suitable work may only be activated by an agency referral to apply for suitable work. Toms v. Plantronics, 631-BR-84.
C. Relation to Section 8-1001 Penalty for the Same Conduct
The claimant was found to have quit for valid circumstances and received a five week penalty. A few weeks later, the employer offered the claimant his job back, but the claimant refused for the same reason he originally quit. The penalty imposed on the claimant for leaving a job cannot be added to or lengthened by referring the claimant once again to the same job. The claimant's reasons for refusing the job are the same reasons that he quit. To penalize him again is inappropriate. The job offer was not suitable. Butts v. Frederick Foundry and Machine, Inc., 23-BR-91.
II. Offer of Work
A. In General
The employer and claimant had a vague conversation concerning the claimant coming back to work for the employer. It was decided that this discussion would be continued the following week, but it was not continued by either party. The claimant did not refuse suitable work within the meaning of Section 8-1005. Section 8-1005 refers to only bona fide and definite offers of employment. Normally, such an offer includes at least a definite salary or other method of payment and a definite starting date. Neither was present in this case. Since there was no offer of a specific job, the claimant cannot be disqualified under Section 8-1005. Hiken v. Milton Samuelson, 889-BR-87.
B. Former Work
The claimant refused the offer of her exact former position on the grounds that she was unwilling to enter into child care arrangements. The claimant's former job is clearly suitable under Section 8-1005, and her refusal was without good cause. Ervin v. Government Services Savings and Loan, 297-BR-85.
The claimant quit her job because it required working in constant cold temperatures and because she had accepted other employment. When the new job fell through, the claimant refused an offer to return to her former job because of the cold conditions. The claimant refused suitable work without good cause; but the cold temperature and the short length of unemployment (one month) justify imposing less than the maximum penalty. Ruby v. Hearn and Kirkwood, 70-BR-86.
The claimant declined to be rehired when the employer offered him four more weeks of work. He declined because of dissatisfaction with certain work conditions which he perceived as discriminatory and also due to excessive physical handling of him by his supervisor. The claimant refused an offer of suitable work, but for good cause, within the meaning of Section 8-1005. Violet v. Department of Natural Resources, 1045-BR-89.
C. Temporary Work
The claimant had prior experience working for the same employer as a temporary warehouseman at $4.00 per hour. While on layoff, the claimant was offered a long-term temporary assignment at $4.25 per hour. The claimant refused the job because he was expecting to return sometime soon to an unspecified full-time job. The hope of a recall to a full-time job at an indefinite time is not good cause for the refusal of suitable work, where the work, though temporary, was long-term and paid slightly higher than the claimant's last experience at this type of work. The claimant had done this type of temporary work before, and he did not provide any evidence that it was unsuitable. Braxton v. B.S.I. Temporaries, Inc., 771-BH-86.
D. Offer Withdrawn
The claimant was offered a job, but wanted to wait one day to see if another offer would be made by another employer. The original offer of employment was withdrawn before the claimant had an opportunity to accept. The claimant's actions in waiting were reasonable and the claimant did not refuse an offer of suitable work. Weeks v. Allen Foods, 101-BR-83.
E. Offer Never Made
On January 6, 1991, the employer laid off the claimant but it was anticipated that the claimant would be back to work within three or four weeks. On January 9, 1991, the employer decided to recall some of its employees, including the claimant. Although the employer had the claimant's phone number, there was no further contact between the employer and the claimant and the employer never actually recalled the claimant to work. Since the employer never contacted the claimant with this offer, the claimant cannot be considered to have refused work. Penson v. Southern Galvanizing Company, 598-BR-91.
The claimant had been employed for two years as a truck driver and a truck foreman. He was laid off October 18, 1990. On December 27, 1990, he received a mailgram at 2:30 p.m. telling him to work that day. The claimant immediately called the foreman, but the foreman told him that no work was available. No prior or subsequent offers of work were made to the claimant. Since the claimant was not offered work of any kind, no penalty may be imposed upon him under Section 8-1005. Small v. Mel McLaughlin Corporation, 1212-BH-91.
III. Determination of Suitability
A. In General
Where available employment is in the claimant's field and the claimant is generally qualified for it, the burden shifts to the claimant to show that the job is not suitable. Failing such proof, the job is considered suitable and the claimant's failure to apply is without good cause. Rose v. Garland Trucking Company, 11-BH-85.
The claimant was performing her job to the best of her ability when she was discharged. Several weeks later, the employer wrote the claimant a letter offering her job back on the condition that her attitude would change. The claimant did not respond to this letter. The claimant was not offered suitable work under Section 8-1005. The offer of work was conditioned upon the claimant changing her attitude. Given the findings that the claimant's attitude was satisfactory at all times, this was not an offer of suitable work. Crist v. Contemporary Accounting Service Company, 996-BH-88.
B. Demands of Job
The claimant's refusal to return to a construction job because of his documented medical condition is not disqualifying under Section 8-1005 since the work was not suitable when considering "the degree of risk involved to his health...and his physical fitness." Trey v. Ansetta Associates, Ltd., 224-BR-84.
C. Distance and Transportation
The job offered the claimant was not suitable because it was located ten miles from the claimant's home and he lacked both private and public transportation. The evidence showed that the claimant could have taken a bus to within two miles of the job site, but then the claimant would have to walk the remaining two miles over mountainous terrain. Anderson, 589-BR-83.
A temporary job located 50 miles from the claimant's residence was found not suitable. Kropkowski v. Kennedy Temporaries, 357-BR-85.
The claimant worked part-time (27 hours per week) in the employer's laundry establishment, however, the laundry establishment closed. The claimant applied for unemployment insurance benefits. After that, the employer offered the claimant part-time work at another location. The pay rate was the same, but the offer was for only six hours of work, one day per week. The claimant refused because she believed it would not be worth her while to travel on a bus, paying extra zone fares, to obtain six hours of work per week. The job was not suitable work under Section 8-1005. Pryor v. Samuel A. Kurland, 593-BH-91.
D. Labor Disputes
Where an employer offers positions which are vacant due directly to a labor dispute, the offers of "new work" are not suitable under Section 8-1005 and no disqualification shall be imposed. Clugston, et al. v. R.M.R. Corporation, 437-BH-84.
The claimant refused a job assignment because he was a member of the sprinkler fitters union and his union was picketing the new job site to protest the city's hiring of nonunion contractors. The position offered to the claimant was not vacant due to a labor dispute, but rather was available through the ordinary course of business. Therefore, the job offer was suitable, and the claimant's failure to accept it supports a disqualification under Section 8-1005. Coward v. Randolph Phipps Construction Company, Inc., 453-BH-84.
E. Rate of Pay
Employment is not suitable where the wage offered is below the minimum wage. Taylor v. Speedway Launderette, 563-BH-84.
The claimant was a carpenter who earned in excess of $12.00 per hour at the time of his separation from his job. Approximately three weeks later, the claimant, on his own initiative, inquired about a job in a lower classification which paid almost half of his annual salary. The claimant was offered this job, but he refused. Considering the relatively short time of unemployment, the significantly lower salary, the lower job classification and the fact that the claimant had good job prospects at his former salary level, the job referral was not suitable pursuant to Section 8-1005. Tuck, 830-BR-88.
The suitability of offered employment depends in part upon whether the salary offered corresponds to the value of a claimant's skills in the labor market. The claimant provided the best evidence possible that the salary was insufficient by showing that he immediately obtained another job paying a higher salary. The extremely short-term nature of the job offered, combined with the claimant's reasonable expectation of obtaining other, more stable temporary assignments establishes that the claimant's refusal is not disqualifying. Gerberg v. Network Recruiters, Inc., 1535-BR-92.
F. Hearing Examiner's Authority to Determine
The hearing examiner misapplied the Barley case by reading into it a conclusion that the hearing examiner could not independently review a decision of the job service that a job is suitable. The hearing examiner does have the authority and responsibility to decide the issue of suitability within the meaning of Section 8-1005. Zebron, 49-BR-89.
G. Part-Time, Stopgap Job
A part-time, temporary assignment was not suitable work. The fact that a claimant performs some employment paying well below his regular employment as an extra job while fully employed, does not make that type of work automatically suitable as a reasonable job choice once the claimant has lost his full-time job. Green v. CES Security, Inc., 1368-BH-93.
IV. Determination of Good Cause for Refusal
A. Temporary Employment
Where the claimant refused temporary work in order to interview for permanent work, good cause is supported and no penalty shall be imposed under Section 8-1005. Gallagher v. Goodfriend Temporaries, 1774-BR-82.
Where a claimant is only given two hours' notice of available, temporary work, the claimant's refusal to accept same is for good cause. Gallagher v. Goodfriend Temporaries, 1774-BR-82.
The claimant's insistence on being allowed to make her appointments for interviews for permanent, full-time work rather than accept temporary work out of her field, at significantly lower pay, is a reasonable decision, calculated to remove herself from the unemployment rolls in a permanent manner. The claimant had good cause for refusing work within the meaning of Section 8-1005. Eyre v. Manpower, Inc., 27-BH-88.
The claimant's refusal of a three-day temporary job assignment because her husband was sick was for good cause under Section 8-1005. Best v. Kelly Girl Temporary Services, 550-BR-84.
V. Mitigating Factors
A. Seasonal or Temporary Work
The claimant reasonably believed that the employer offered her work on Saturdays and Sundays for six hours each day, but only through the holiday season. The job offer was suitable and the claimant's refusal was without good cause, since the claimant's prior work for this employer was also part-time (18 hours per week). However, since the job was for one-third fewer hours per week and its duration beyond the holiday season was uncertain, a minimum disqualification is appropriate. Berg v. Lee's Boutique, 141-BR-89.
The claimant worked for a temporary agency. He refused an assignment because of his dissatisfaction with the short-term nature of the assignments previously given him. These assignments ranged from six hours to 14 weeks. Since a person is not considered employed with a temporary agency simply because his name is registered with them, the claimant was not employed and therefore cannot be considered to have quit when he refused the assignment. Since he did not quit, his refusal of the assignment is considered a refusal under Section 8-1005. The claimant's dissatisfaction with the short-term nature of the assignments does not amount to good cause, but is a sufficient factor to justify a minimum penalty. Abate v. Russoli Temps, 659-BR-90.
B. Rate of Pay
The claimant had worked as a chief stationary engineer earning $11.50 per hour. After he became unemployed, he was offered a job as a stationary engineer which paid $9.94 per hour. This job was very similar to his previous job except that it paid $1.56 less per hour and presumably entailed little or no supervisory responsibility. The claimant refused the job offer. The job offered was suitable employment. However, since it did pay $1.56 less per hour than the claimant's prior job, and the claimant had only been unemployed a short time when it was offered, a minimum penalty is appropriate. Berggren v. Memorial Hospital at Eastern Maryland, Inc., 758-BR-89.
The claimant made an effort to keep her appointment with the prospective employer, but was hindered due to car problems. However, she failed to take reasonable steps to follow up and contact the employer later. The claimant failed to show good cause for failing to apply for suitable work, but a reduced penalty is appropriate. Shafer, 916-BR-87.
The claimant was offered suitable work, but he refused it because his driver's license had been suspended. Without a license, he was unable to get to work. The claimant still owed a substantial sum of money to the state and his license would not be reinstated until he paid the full amount. The claimant refused suitable work without good cause, however mitigating circumstances warranted a reduced penalty. Cooper v. Robert E. Bittinger, 1482-BR-91.
VI. Failure to Apply for Work
A. Applying Later Than Directed
The claimant was first notified of a job possibility on September 7, 1988. He delayed in calling about the job until after September 29, 1988, resulting in his failure to apply formally until October 4, 1988. The job had never actually been offered to the claimant. The claimant failed to apply for suitable work when directed to do so by the Secretary. The total facts of this case justify a five week penalty. Anderson, 114-BR-89.
B. Missing Pre-Employment Test
The claimant failed to report to the local unemployment office to take a test. The test was being given on behalf of a potential employer who wanted applicants screened as to verbal and math abilities before hiring. It would not be clear whether the work was either available or suitable until after the test was taken. The claimant thus cannot be disqualified under Section 8-1005 for failure to apply for available, suitable work. The claimant, however, should be disqualified for failure to report to the local office when directed, under Section 8-902(a)(2). Weber, 1546-BR-93.