Nielsen v. Employment Department

328 P.3d 707, 263 Or. App. 274, 2014 Ore. App. LEXIS 724
CourtCourt of Appeals of Oregon
DecidedMay 29, 2014
Docket12AB0123; A150925
StatusPublished
Cited by3 cases

This text of 328 P.3d 707 (Nielsen v. Employment Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nielsen v. Employment Department, 328 P.3d 707, 263 Or. App. 274, 2014 Ore. App. LEXIS 724 (Or. Ct. App. 2014).

Opinion

TOOKEY, J.

Claimant seeks review of an order of the Employment Appeals Board that denied her unemployment insurance benefits on the ground that she voluntarily left work without good cause. See ORS 657.176(2)(c);1 see also OAR 471-030-0038(4).2 We write to address only one of claimant’s arguments — that the board erred when it adopted an administrative law judge’s (AL J) order concluding that claimant, who left work in part because she was required to work overtime without receiving overtime pay, failed to pursue reasonable alternatives and failed to establish good cause for quitting when she failed to complain to employer about her unpaid wages or file a complaint with the Bureau of Labor and Industries (BOLI).3 We conclude that claimant voluntarily left work with good cause. Accordingly, we reverse and remand.

The relevant facts are not in dispute, and we state those facts “consistently with the board’s findings and the record that supports those findings.” Aguilar v. Employment Dept., 258 Or App 453, 454, 310 P3d 706 (2013). We review the board’s order “for substantial evidence and errors of law, and to determine whether its analysis comports with substantial reason.” Campbell v. Employment Dept., 256 Or App 682, 683, 303 P3d 957 (2013) (internal brackets and quotation marks omitted).

[276]*276Claimant worked as an office manager for Westwind Landscape Supply for approximately one year. During the course of her employment, claimant faced the “ongoing problem” of underpayment — that is, her employer4 “required her to work overtime without receiving overtime pay.” Specifically, claimant was “working more than 38 hours, but [employer] was only paying [her] for 38 hours” for “at least an entire year[.]” Claimant was not “the only one” who was underpaid. Other people who worked for employer

“would put in their overtime and [employer would] only pay them for a certain amount of hours. And he’d say, ‘Well, I know you were sitting on the side of the road having lunch, and I know you were probably doing this.’ You know, and I — T don’t believe you were really * * * fully working that entire time.’”

Claimant was also afraid of employer. She had “actually witnessed former staff that were trying to get their full pay, you know, almost — with [claimant] almost having to call 9-1-1 because there was almost a physical brawl over these things happening.” Claimant was “not a confrontation person.” There were times when she put “the hint out there” about her unpaid wages, but she did not complain to employer because she did not want to anger him. Claimant also did not file a complaint with BOLI.

Claimant left work and sought unemployment benefits, which the Employment Department denied on the ground that claimant voluntarily left work without good cause. ORS 657.176(2)(c). After claimant appealed, an ALJ conducted a hearing and affirmed the Employment Department’s decision to deny claimant benefits. Claimant then appealed to the board, and the board reversed the ALJ’s order and remanded the case for additional proceedings. The ALJ conducted a second hearing and issued a final order affirming the Employment Department’s decision to deny claimant benefits. In that order, the ALJ concluded:

“To the extent that claimant quit because she was not getting paid for all hours worked, claimant established [277]*277that she faced a grave situation. However, claimant failed to complain to the employer about the situation or file a complaint with the Bureau of Labor and Industries]. Claimant failed to pursue reasonable alternatives, and failed to establish good cause for quitting.”

After claimant again appealed to the board, the board adopted the ALJ’s final order. Claimant timely petitioned this court for review.

ORS 657.176(2)(c) disqualifies an individual who “ [v] oluntarily left work without good cause” from receiving unemployment benefits. Good cause for voluntarily leaving work “is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work.” OAR 471-030-0038(4). A claimant’s reason for quitting “must be of such gravity that the individual has no reasonable alternative but to leave work.” Id. Thus, good cause is “an objective standard that asks whether a reasonable and prudent person would consider the situation so grave that he or she had no reasonable alternative to quitting.” McDowell v. Employment Dept., 348 Or 605, 612, 236 P3d 722 (2010) (internal quotation marks omitted). In other words, the question is “whether a reasonable person of normal sensitivity, exercising ordinary common sense, would have considered the circumstances to be sufficiently grave that he or she had no alternative but to resign.” Id. at 614. Accordingly, we must determine whether, in light of the board’s findings in this case, that standard was met as a matter of law. Id. at 620.

Two cases are helpful to our analysis: Westrope v. Employment Dept., 144 Or App 163, 925 P2d 587 (1996), and J. Clancy Bedspreads & Draperies v. Wheeler, 152 Or App 646, 954 P2d 1265 (1998). In Westrope, we cautioned that OAR 471-030-0038(4) “‘does not require, as the Board appears to suggest, that a claimant must show in every case that she asked about or otherwise explored alternatives to leaving work. There are cases in which any such effort would be useless.’” 144 Or App at 170 (quoting Bremer v. Employment Division, 52 Or App 293, 296, 628 P2d 426 (1981) (emphasis in Bremer). Later, in J. Clancy Bedspreads & Draperies, we affirmed the board’s “conclusion that filing a wage claim [278]*278with BOLI while remaining employed was not a reasonable alternative for [the] claimant [,]” based on its finding that the employer had refused to pay the claimant overtime pay. 152 Or App at 650-51. As we subsequently explained, our conclusion in J. Clancy Bedspreads & Draperies rested on the assumption that the claimant was subjected to a past default on wages “plus the substantial risk of recurrence” Marian Estates v. Employment Dept., 158 Or App 630, 637, 976 P2d 71 (1999) (emphasis in original).

As we explain more fully below, the board incorrectly concluded that claimant voluntarily left work without good cause. The board’s findings, and the evidence in the record that supports those findings, required the board to conclude that claimant established good cause to leave work.

First, under the circumstances in this case, complaining to employer about unpaid wages was not a reasonable alternative to leaving work because it would have been useless or even dangerous for claimant to do so. The uncontested evidence demonstrates that employer was unwilling to pay overtime to workers who complained about their pay.

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Bluebook (online)
328 P.3d 707, 263 Or. App. 274, 2014 Ore. App. LEXIS 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nielsen-v-employment-department-orctapp-2014.