Summary of Useful Precedent

PRECEDENT

I.                 PRECEDENT / GENERAL RULES

A.    When there is a relevant precedent, CITE IT

B.    There is a link to the entire PRECEDENT MANUAL on our internal website (www.ui-appeals.com).  (Re-)Familiarize yourself with it.   [THIS IS THE LINK]

C.    Here is a link to the TABLE OF PRECEDENT CASES cited in the Precedent Manual.  

The full text of some of those cases is also available via internal hyperlinks: [LINK TO TABLE OF CASES]

D.     This page provides info about *SOME* of the more COMMONLY used precedent cases.  It is not a substitute for being familiar with and using the complete 267-page Precedent Manual.

II.             SOME USEFUL PRECEDENT

THIS PAGE CONTAINS A NUMBER OF USEFUL BLURBS

A "TABLE OF CONTENTS"-LIKE SUMMARY OF THIS PAGE CAN BE FOUND HERE.

A.    AGENCY ISSUES

         1.    LATE APPEAL

                A.     Confusion, misunderstanding, lost papers: NO GOOD CAUSE

Where the claimant had the ability to read the determination but simply neglected to read the portion of it clearly captioned "Appeal Rights" and filed his appeal months later, good cause was not found. Faust v. Glynn Emrich Company, 298-BH-85.

The last day to file a timely appeal was April 27, 1988, but the appeal was not filed until April 28, 1988. The claimant received this determination and understood it. The claimant offered that he misplaced his papers, found them "the day after," mixed up the date in his head and then contacted the local office. The claimant failed, without good cause, to file a timely appeal under Section 8-806. Simon v. Ronald F. Varelli, 920-BH-88.

B.     Relocation Without Notice: NO GOOD CAUSE

Where the claimant moved repeatedly and failed to notify the agency of her new address, and in addition failed to make efforts to have her mail forwarded, the claimant does not have good cause for filing a late appeal on the grounds that she did not receive the determination on time. Grimes v. DHEW, 393-BH-84.

C.     Inaction by Authorized Representative: NO GOOD CAUSE

The claimant's excuse for filing her appeal eight days late is that she was waiting for her attorney to file it. The failure of an authorized representative to file a timely appeal does not give a party good cause for a late appeal under Section 8-806. Noel v. Government Employees Insurance Company, 1042-BR-89.

D.     Failure to Exercise due diligence: NO GOOD CAUSE

Where the determination was misaddressed and the claimant received it possibly after the last date to appeal (February 19), but before the end of February, and where the claimant did not file her appeal until March 21 and stated that the reason for her further delay was "nothing in particular," good cause was not found. Oguledo v. Bradlee's, 36-BR-86.

         2.    ABLE AND AVAILABLE

                    A.    GENERAL OBLIGATION TO MAKE JOB CONTACTS.   

Section 8-903 does not specifically require that a claimant make personal job contacts, although that is the usual standard which is applied. The standard contained in the statute is whether the efforts an individual has made to obtain work have been reasonable and are such efforts as an unemployed individual is expected to make if he/she is honestly looking for work. In re: Smith, 684-BR-83.

                    B.    PHYSICAL RESTRICTIONS

CLAIMANT CAN PERFORM OTHER WORK.  A claimant who is restricted from performing certain work is not disqualified under Section 8-903 if he shows that he is able to do other work and is, in fact, seeking other work that he is capable of performing during the time he has the restriction. Connor v. City of Baltimore, 416-BR-87.

CLAIMANT CAN PERFORM OTHER WORK (2nd case).  A claimant need not be able to do every type of work that she has ever done in order to be able to work within the meaning of Section 8-903. Where the claimant remained able to do the type of work which she had customarily performed on a full-time basis, that claimant was not disqualified under Section 8-903 for being unable to perform an additional type of work which she customarily performed on a part-time basis. Werle v. Giant of Landover, Inc., 2170-BR-92.

CLAIMANT CAN PERFORM OTHER WORK (3d case).  A claimant laboratory technician who could not stand for a prolonged period of time due to an injury met the eligibility requirements of Section 8-903 where she was looking for laboratory work which did not require standing, in addition to clerical and receptionist work for which she had some experience. Waring v. Burton Parsons, Inc., 847-BH-81.

CLAIMANT MUST SEEK WORK HE/SHE CAN DO.  When severe limitations are placed upon a claimant's ability to work, the claimant has the burden of showing not only that she was seeking work, but seeking work that she could do, given her limitations. Swafford v. U.S. Postal Service, 252-BH-89.

                     C.    MEDICAL RELEASES

RELEASE DATE GOVERNS.  A claimant who has been released to return to full-time work, without restrictions, is able to work within the meaning of Section 8-903 from the date of the release. In re Brooks, 12-BR-85.

RELEASE SOMETIMES UNNECESSARY.  The claimant had broken her small toe, but it did not affect her ability to stand or perform the type of work she normally performed. The claimant's injury was so minimal that the requirement of producing a doctor's note was unreasonable. The law does not require or contemplate that apparently healthy people should be required to produce doctors' notes to verify that fact. To do so would place an onerous and unnecessary burden on those who are out of work and who need to devote their time to finding work again. The claimant was able to work. In re Blue, 1571-BR-93.

        D.    SOME USEFUL SCHOOL-RELATED CASES

Normally, a claimant attending day school does not meet the basic requirement of Md. Code Ann., Labor & Emp. Article, Section 8-903 that a claimant for unemployment insurance benefits must be available for work, without restriction. In the case of Idaho Dept. of Employment v. Smith, 434 U.S. 100, 98 S. Ct. 327 (1977), the U.S. Supreme Court held that "...attending school during daytime hours imposes a greater restriction upon obtaining full-time employment than does attending school at night. In a world of limited resources, a state may legitimately extend unemployment benefits only to those who are willing to maximize their employment potential by not restricting their availability during the day by attending school."

See also: In Robinson v. Maryland Employment Sec. Bd., 202 Md. 515, 97 A.2d 300 (1953), the Court of Appeals held that a claimant for unemployment insurance benefits may not impose restrictions upon availability and still meet the standard of the statute. Attending day school is a material restriction upon one's availability for work and is thus disqualifying.

FOCUS ON NORMAL WORK WEEK.  A disqualification under Section 8-903 is inappropriate where the claimant is available for work during the normal work week and is unavailable for weekend work only because he is attending a training program to upgrade his job skills. Williams, 901-BR-83. 

The claimant was able, available and actively seeking work under Section 8-903 since his attendance two hours per week in an educational program did not interfere with his ability to work or with his work search. Clasing, 95-BH-90. 

A claimant attending school 3 days per week to learn the English language should not be disqualified for restricting his ability or availability to accept full-time employment. The claimant did not treat his schooling as a restriction regarding ability, availability and active search for work. This is supported by the fact that the claimant's work search resulted in full-time employment. Vladimir A. Kuzman, 00616-BR-99 (1999). 

A full-time student who is seeking and has obtained full-time employment, may meet the requirements of being able and available for work, even when he has a full-time school schedule. Canneti, 977-BH-02. 

Flexible Schedule cases:

A claimant who, although attending school, continues to look for full-time work and would adjust her school schedule or give up school upon receiving permanent full-time work is able, available and actively seeking work. Drew-Winfield v. Patuxent Medical Group, 87-BH-87.

There is no reason to disqualify a claimant under the availability provisions when his part-time classes have been arranged to be flexible enough to change to accommodate any work schedule. Mallett, 1132-BR-92. 

    E.    HOURS OF WORK . 

It is inaccurate to say that a claimant must be willing to work any and all shifts. The relevant question is whether a claimant is reasonably available for work to the extent that a person actually desiring to work and making it the highest priority in his or her life would be. Harwell, 1861-BR-92.

         3.    SEVERANCE PAY

                    A.    BURDEN IS ON EMPLOYER.  

Since the employer had control of the records, it is appropriate to place the burden on the employer to demonstrate that the payments [upon separation] were severance pay. Since the employer did not meet its burden with enough evidence to find that the payments were severance pay, the payments were not deductible from benefits. Wilkerson v. Closet Crafters, Inc., 1105-BR-89.

                    B.    PAYMENTS WHICH DO NOT CONSTITUTE SEVERANCE PAY

The claimant negotiated with the employer and received a $50,000 payment in return for early cancellation of the [employment] contract and a change in the noncompetition clause of the contract. This payment constitutes consideration for both the cancellation of the contract and the noncompetition clause and is not wages in lieu of notice or a dismissal payment. The $50,000 received is thus not deductible under Section 8-1009. Bohager v. Waste Management, Inc., 522-BH-85.

B.    QUIT

              1.    PERSONAL REASONS CANNOT BE GOOD CAUSE but CAN BE VALID CIRCUMSTANCES

Basically speaking, to establish good cause, the claimant must show that the cause for leaving is directly attributable to, arising from or connected with the conditions of the employment or the actions of the employer.* Purely personal reasons, no matter how compelling they may be, cannot constitute good cause. Board of Education of Montgomery County v. Paynter, 303 Md. 22, 491 A.2d 1186 (1985).   (*Note: 8-1001(b) does have two very limited exceptions to this rule.)

To establish valid circumstances, however, there are three paths: (a) the personal reason has a "substantial cause" related to the employment, (b) the personal reason is "necessary and compelling" with "no reasonable alternative" but to quit (if this reason is medically-related, claimant needs a doctor's note as proof - 8-1001(c)(2)), or (c) to follow a military spouse following a mandatory transfer.  

              2.    RESIGNATION IN LIEU OF DISCHARGE

IF THERE IS AN ACTUAL DISCHARGE: TREAT AS DISCHARGE.  A claimant who resigns in lieu of discharge does not show the requisite intent to quit under Allen v. CORE Target City Youth Program, 275 Md. 69, 338 A.2d 237 (1975). Therefore, a resignation in lieu of discharge shall be treated as a discharge under Section 8-1002 or 8-1003 of the law. Miller v. William T. Burnette and Company, Inc., 442-BR-82.

IF THERE IS MERELY A FEAR OF DISCHARGE: TREAT AS QUIT.  Where a claimant quit because he feared a discharge was imminent, but he had not been informed that he was discharged, the resignation is without good cause or valid circumstances. Roffe v. State of South Carolina Wateroe River Correction Institute, 576-BR-88.

    OTHER USEFUL QUIT PRIOR TO DISCHARGE CASES:

A resignation in order to avoid facing charges which may lead to discharge is a voluntary quit without good cause and without valid circumstances under Section 8-1001. Brewington v. Department of Social Services, 1500-BH-82. 

An exception to the rule in the Brewington case might be found where an employer intentionally brought personnel charges against an employee in bad faith or for purposes of harassment. The burden would be on the claimant to show bad faith or harassment. However, the mere presence of a police officer and a statement that criminal charges would be filed against the claimant for theft is not sufficient to constitute harassment. Therefore, the claimant's resignation in lieu of facing charges constitutes a voluntary quit without good cause or valid circumstances. Smith v. Maryland Training School for Boys, 359-BR-84. 

The claimant voluntarily quit because he thought he would be discharged. When an employee voluntarily quits in anticipation of discharge for his own misconduct, this is a voluntary quit without good cause or valid circumstances. Cofield v. Apex Grounds Management, Inc., 309-BR-91. 

The claimant resigned as part of a plea bargain of criminal charges. This was a voluntary quit without good cause or valid circumstances. Bellamy v. Denton Police Department, 421-BR-87. 

The employer confronted the claimant with a suspicion of theft when money was missing from the employer's account. The employer's action was reasonable. Rather than attempt to explain, the claimant quit the job. Since the claimant quit to avoid a confrontation with the employer over missing money, and since the employer's action was reasonable, the claimant voluntarily quit without good cause or valid circumstances. Pasko v. Salisbury Warehouse Partnership, 173-BR-87.

            3.    QUIT FOR ECONOMIC REASONS / TAV AND RELATED

TAV: QUIT FOR OTHER EMPLOYMENT/ PURE ECONOMIC REASONS.  In Total Audio-Visual Systems, Inc. v. DLLR, 360 Md. 387 (2000), the Court held that an individual who has left his or her employment to accept other employment has not left his or her job for good cause as defined in Section 8-1001(b)(1) of the Labor & Employment Article of the Annotated Code of Maryland.  This is because quitting ones job for purely economic reasons is neither necessitous nor compelling.  See also Plein v. Dep't of Labor Licensing & Regulation, 369 Md. 421, 800 A.2d 757 (2002); Gagne v. Potomac Talking Book Services, Inc., 374-BH-03.

EXCEPTION: OTHER COMPELLING REASONS.  However, a finding of valid circumstances is appropriate if the claimant can show that accepting the alternative employment was "of such a necessitous and compelling nature that the individual had no reasonable alternative other than leaving the employment." Gaskins v. UPS, 1686-BR-00.

ANOTHER EXCEPTION: QUIT TEMP FOR PERM.  Voluntarily quitting full-time employment through a temporary employment agency to accept a bona-fide offer of permanent, full-time employment with another employer is not “purely economic” in nature, as it goes to the permanency of the work.  Therefore, such a voluntary quit, even when both positions offer comparable benefit packages, constitutes valid circumstances for the quit, warranting only the imposition of a minimum weekly penalty.  Stein v. Excell Personnel, 2468-BR-04.

            4.    QUIT IMPLIED FROM FAILING TO RETURN FROM LEAVE OF ABSENCE.  

Where a claimant receives a leave of absence but is still unable to return (and does not have an expected date for his or her return) upon the expiration of that leave, it is held that the claimant voluntarily quit for valid circumstances.  This is true because, notwithstanding the fact that the claimant did not actually want to quit, she intended not to return to work for an indefinable period and this is treated as tantamount to expressing an intent to quit.  Sortino v. Western Auto Supply Company, 896-BH-83.

BUT NOTE:

A claimant who is replaced while out on a medical leave of absence is discharged, but not for misconduct or gross misconduct. Vathes v. Wareheim Air Brakes, Inc., 366-SE-87.

Upon returning from a leave of absence requested by the employer, the claimant was handed a letter of resignation and asked to sign it. The claimant signed the letter because he knew that if he did not sign it, he would be fired. The employer proved no misconduct of any kind on the claimant's part. The claimant had no intent to resign. The claimant was discharged, but not for any misconduct or gross misconduct. Cox v. B. Green and Company, Inc., 957-BH-89.

Being placed on an involuntary, unpaid leave of absence due to a medical disability is the full equivalent of a discharge, for unemployment insurance purposes. Tillery v. Maryland News Distribution Company, 812-BR-92.

            5.    QUIT DUE TO SEXUAL HARASSMENT

Where the employer subjected the claimant to a relentless and unwanted barrage of requests for her sexual favors, despite her constant refusals, and made it clear that such requests would continue, the employer’s conduct constitutes sexual harassment of the claimant and created intolerable working conditions. The claimant’s resignation was for good cause. It is unreasonable to expect a claimant to make a formal complaint to her supervisor (in this case, the very individual making said advances) where such complaint would result in personal humiliation or where a complaint would be futile. In reaching its determination in this case, the Board considered the sexual harassment definition promulgated by the Equal Employment Opportunity Commission (EEOC). See, 29 C.F.R. Section 1604.11(a) (1980). McCaughey v. Charles E. Brooks Law Office, 405-BH-84.

The employer repeatedly placed his hands on the claimant’s breasts or buttocks and put his hand up her skirt to touch her in a personally offensive manner, but the claimant waited four months before she quit. To state that the claimant condoned this treatment because she worked at the establishment for approximately four months is to penalize the claimant for attempting to make the best of a bad situation for as long as possible. The claimant quit for good cause. Netzer v. Lori Enterprises, Inc., 393-BR-86.

The claimant was a victim of sexual harassment by a coworker, but did not inform the employer of this and merely did not return to work. Since she did not take steps to correct the situation, she quit without good cause, but such an intolerable situation still amounted to a valid circumstance. Parsons v. Salisbury Nissan, Inc., 644-SE-88.

The claimant was physically and sexually assaulted by her supervisor on the work premises, during work hours. This constitutes good cause for leaving, especially where previous incidents of sexual harassment by the same supervisor had been brought to the attention of management. Torain v. Wackenhut Security, 62-BR-87.

Where the employer brushed off the claimant’s complaints about sexual harassment by coworkers, but the claimant failed to file a formal grievance about this, the claimant quit without good cause, but with valid circumstances. Haynes v. Giant Food, Inc., 223-BR-90.

The claimant was sexually fondled, then sexually harassed by one who was in a position to make her employment miserable if she didn’t consent. When she didn’t consent, the employer deliberately repeatedly accused her of having a bad attitude. The claimant voluntarily quit for good cause. Bartholow v. Reisterstown Twin Kiss, 1280-BR-91.

            6.    ACCELERATION OF QUIT OR INDEPENDENT DISCHARGE?

After incurring a long history of unexcused absences and tardiness, the claimant submitted a resignation to be effective in two weeks. During the notice period, the claimant was away from the work station and became disruptive. The claimant was discharged prior to the effective date of the resignation. The termination was not merely an acceleration of the leaving, but was for intervening violations of employment rules constituting gross misconduct. Salisbury v. Levinson and Klein, 395-BH-84.

The claimant submitted a resignation giving two weeks’ notice but was discharged prior to the expiration of the notice period for an act which did not constitute misconduct. Unlike the Salisbury case, supra, the claimant was not discharged for an independent reason. The discharge was primarily an acceleration of the resignation date. Therefore, the claimant will be considered to have voluntarily quit under Section 8-1001 from the effective date of the resignation. However, the claimant is not disqualified from benefits during the notice period. Nazarini v. Chesapeake Bay Seafood House, 294-BR-86.

PENALTY COMMENCES AS OF EFFECTIVE DATE OF QUIT.  Where the claimant gave two weeks’ notice and the employer accelerated the claimant’s leaving to be effective immediately, the penalty under Section 8-1001 of the law does not commence until two weeks after his separation from employment. Stefan v. Levenson and Klein, 1794-BR-82.

     7.    WAGES NOT PAID CORRECTLY OR ON TIME

If wages are not paid correctly and on time, the damage to the employee has already been done. Efforts to correct the situation are laudable (and legally required) but they have little effect on the issue of good cause unless an employer can show that the employee is being totally unreasonable. The timely and prompt payment of all wages due is one of the most basic obligations of an employer to an employee, and an employer’s failure to meet this obligation constitutes good cause for leaving. Kimmell v. Dennis J. Smith, et al., 2065-BR-92.

 8.    SUBSTANTIAL CHANGE IN WORKING CONDITIONS

A substantial change in working conditions to the detriment of an employee can constitute good cause for voluntary leaving under Section 8-1001.  Rockstroh v. Brocato’s Restaurant, 154-BH-86.

 9.    CLAIMANT'S MEDICAL ISSUES CAUSED BY JOB 

In Stenner v. Mine Safety Appliance Company, 971-BR-88, the medical problems of the claimant were directly attributable to, arising from or connected with the conditions of employment. The claimant produced medical evidence to support her claim, and the employer produced no evidence to rebut this. The Board of Appeals determined that the claimant had good cause for leaving. 

C.    DISCHARGE

                1.    BURDEN OF PROOF IS ON THE EMPLOYER          

The employer has the burden of proving misconduct or gross misconduct, but failed to meet this burden. A claimant does not have to prove why the employer actually fired her. Ivey v. Catterton Printing Company, 441-BH-89.

                 2.    CONSIDER ALL ACTS BY CLAIMANT                               

Where an employer discharges a claimant for a variety of actions alleged to constitute misconduct, but where some of these actions were not proven or cannot be considered as misconduct, the remaining actions should be considered, and if they amount to misconduct, the claimant was discharged for misconduct. Edmonds v. Anne Arundel County Government, 1476-BH-92.

Even though a claimant’s last absence was with good reason, a finding of gross misconduct is supported where the claimant was discharged for a long record of absenteeism without valid excuse or notice, which persisted after warnings. Hamel v. Coldwater Seafood Corporation, 1227-BR-93.

                  3.    ISOLATED INCIDENTS

The claimant's one mistake, which occurred after he had worked only 31 days, was not misconduct. An instantaneous lapse in the performance of job duties does not constitute misconduct. Proctor v. Atlas Pontiac, 144-BR-87.

4.    INCOMPETENCE or BAD JUDGMENT

If an employee is unable to perform due to incompetence or the employer's failure to provide adequate equipment or materials, there is no misconduct. If an employee is discharged because the employee is physically or mentally unable to perform the job, the discharge is not for misconduct. With respect to a pregnant employee, 26 U.S.C., Section 3304(a)(12), which mandates that no person shall be denied compensation under state law solely on the basis of pregnancy, only prohibits the state from singling out pregnancy for unfavorable treatment. See, Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511, 107 S.Ct. 821 (1987).

A mere showing of substandard performance is not sufficient to prove gross misconduct or misconduct. Todd v. Harkless Construction, Inc., 714-BR-89.

The claimant’s lack of success, despite attempting to meet quotas, is not, in itself, misconduct.  The claimant was discharged, but not for any misconduct or gross misconduct. Krevere v. MAD Intelligent Systems, Inc., 890-BR-89.

The employer showed that the claimant did not use good judgment, but failed to prove that this was due to either the claimant’s negligence or deliberate efforts to disregard the employer’s interest. There was no misconduct. Greenwood v. Royal Crown Bottling Company, 793-BR-88.

5.    SOME USEFUL LYING AND/OR FALSIFICATION CASES

The claimant’s deliberately misleading statement to the employer concerning his experience and ability to perform the dangerous job of crane operator constitutes gross misconduct. Faudree v. C.M. Anderson’s Crane Service, Inc., 819-BR-83.

The claimant bank teller responded in the negative to a question on the employment application which asked if she had ever been convicted of a crime. The claimant had appealed a previous District Court conviction to the Circuit Court, where it was placed on the stet docket and therefore, the claimant believed that the conviction did not stand. There is no disqualification under Section 8-1002 or 8-1003 since the claimant’s belief was factually correct. Furthermore, a statement is not a “falsification” when the person making the statement honestly believes that he or she is telling the truth. Karim v. Union Trust Company, 136-BH-84.

On the claimant’s job application, he answered “No” to a question asking whether he had ever been convicted of any offense against the law. Subsequently, the employer learned that the claimant had a prior conviction for receiving stolen goods. The claimant resigned in lieu of discharge. This was gross misconduct. A falsification of a criminal record is more serious than misrepresenting one’s age and is always material. Johnson v. Minneapolis Postal Data Center, 83-BH-89.

The claimant was discharged because he allegedly falsified his job application by failing to volunteer detrimental information about his past life. However, the employer did not ask any questions about this. As long as the information which the claimant submits is truthful, he has no obligation to offer additional information not requested by the employer. The employer is in control of the information flow in this situation. If the employer does not ask a question, it cannot expect it to be answered. There is no misconduct in the claimant’s failure to volunteer detrimental information about his past life. Darby v. Buckingham Correctional Institution, 607-BR-91.

While falsification of an employment application is misconduct, the degree of misconduct (simple or gross) depends on the materiality of the information falsified. Discharge by a prior employer for embezzlement is a highly material factor when applying to work in a bank, and the claimant should have disclosed this fact. Her failure to do so was gross misconduct. Hill v. First National Bank, 1958-BR-92.

Where the claimant made no specific false statement on her application or in her interview about her work experience, the fact that she displayed confidence at her interview that she could perform the job tasks comfortably, then later became nervous when faced with the actual tasks, is not proof of a false statement, and does not amount to misconduct. Hamby v. Seth H. Lourie, et al., 118-BR-93.

The claimant was not under any obligation to his new employer to reveal on his application unsubstantiated false allegations made against him at a previous job. Vassallo v. Loyola Federal Savings Bank, 1468-BR-93.

The claimant had been previously warned about failing to complete his route and failing to properly record his contacts with the households he was supposed to be visiting. He had also been specifically warned not to make up “not at home” cards in advance of actually determining whether anyone was home. The claimant was discharged for making false entries on his computer, indicating that he had visited a number of houses but no one was home. This was gross misconduct. Younger v. Washington Suburban Sanitary Commission, 259-BH-91.

The claimant called in sick when he was not sick. He also requested that the employer lie to the authorities at the detention center. The claimant was discharged for gross misconduct. Conaway v. Oxford Realty Services Corporation, 51-BR-91.

                6.    DRUG CASES

Section 17-214(c) of the Health-General Article of the Annotated Code of Maryland (“Notice of positive test results”) provides as follows:

(1) An employer who requires any employee, contractor, or other person to be tested for job-related reasons for the use or abuse of any controlled dangerous substance or alcohol and who receives notice from the laboratory under subsection (b) of this section that an employee, contractor, or other person has tested positive for the use or abuse of any controlled dangerous substance or alcohol shall, after confirmation of the test result, provide the employee, contractor, or other person with:

(i) A copy of the laboratory test indicating the test results;

(ii) A copy of the employer's written policy on the use or abuse of controlled dangerous substances or alcohol by employees, contractors, or other persons;

(iii) If applicable, written notice of the employer's intent to take disciplinary action, terminate employment, or change the conditions of continued employment; and

(iv) A statement or copy of the provisions set forth in subsection (e) of this section permitting an employee to request independent testing of the same sample for verification of the test result.

IF EMPLOYER FAILS TO COMPLY WITH THIS SECTION

The employer failed to meet the requirements of Section 17-214.1(c)(1)(iv) of the Health-General Article of the Annotated Code of Maryland [now codified as part of Section 17-214]. This section provides that an employer, after having required an employee to be tested for the use or abuse of any controlled dangerous substance, and who receives notice that the employee has tested positive, after confirmation of that test result, shall provide the employee with a statement or copy of subsection (d) of this section permitting an employee to request independent testing of the same sample for verification of the test result. Therefore, based on the employer’s failure to meet this requirement, thereby denying the claimant an opportunity to be retested, the Board concluded that the claimant was discharged for no misconduct. The Board cannot consider as evidence test results which were not acquired in conformity with the law. Webe v. Anderson Oldsmobile Company, 88-BR-91.

EXCEPTION: IF CLAIMANT DOES NOT DISPUTE RESULTS 

Where a claimant does not dispute the fact that he failed a random drug test by testing positive for a controlled dangerous substance, the undisputed drug test result is itself enough to support a finding of gross misconduct even without testimony from the employer at the hearing. The test result speaks for itself. Jones v. Race Track Payroll Account, Inc., 2204-BR-95.

Whether the claimant is informed of, or given the opportunity to have a second testing of the same sample is irrelevant when the claimant does not deny that the results of the drug test are accurate. Boyd v. Cantwell Cleary Company, Inc., 1845-BH-92.

                     7.    INCARCERATION

Absenteeism due to incarceration is generally held to be gross misconduct. However, if the charges which brought about the incarceration were dropped or dismissed or the claimant was found to be not guilty, there may not be a penalty, provided the claimant gave the employer proper notice of the absence.  MARYLAND UNEMPLOYMENT DECISIONS DIGEST (1996, 2ND EDITION) by Regina Tabackman, Esq., p. 187.

The claimant was discharged for absenteeism while incarcerated for violation of probation. The claimant failed to take any reasonable steps to notify the employer of the absence before or after incarceration. The claimant merely called in sick on his court date. The claimant’s actions violated a standard of behavior the employer had a right to expect, showing a gross indifference to the employer’s interest, thus constituting gross misconduct. Roach v. Montgomery County Government, 710-BR-85.

The claimant failed to report to work due to his incarceration for a handgun violation. The claimant was discharged for gross misconduct. Farmer v. Perdue Farms, Inc., 1563-BR-91.

                     8.    END OF TEMPORARY ASSIGNMENT IS A TERMINATION

The general rule is that a worker in a temporary position (including, an “on call” or “as needed” position) becomes unemployed the moment he or she finishes their remunerative assignment.  As an unemployed person, he or she cannot be considered to have quit. The reason behind this rule is to assure that those who take action to alleviate their unemployment by accepting a temporary assignment are not treated more harshly than those who do less.  See, e.g., Steelman v. SES Temps, Inc., 2013-BR-93.

The claimant worked for a temporary agency from November 6, 1989 to November 22, 1989, at which time the assignment ended. The employer attempted to call the claimant with an offer of a new assignment, but was unable to personally contact her. The claimant was discharged from her employment. She became unemployed when her temporary assignment ended on November 22, 1989. No disqualification was imposed. Robinson v. SES Temps, Inc., 384-BR-90

    9.    MISSING A LOT OF TIME: HEIGHTENED DUTY TO REPORT TO WORK

Employees who miss a lot of time, even for excused reasons, have a heightened duty not to miss additional time for unexcused reasons and to conform to the employer's notice requirements. Daley v. Vaccaro's, Inc., 1432-BR-93.

The claimant's absences all appeared to be due to illness. However, at least some of her occurrences of lateness were not due to legitimate medical reasons or other unavoidable reasons. An employee who misses a large number of work days, even if excused, has a heightened duty not to miss any work for unexcused reasons. The claimant was discharged for misconduct. Kinsey v. Nordstrom, Inc., 1103-BR-90.

    10.    ILLNESS.  Absenteeism due to illness is not misconduct. The claimant was discharged, but not for any misconduct. DuBois v. Redden and Rizk, P.A., 71-BH-90.

         11.   DEALING WITH LIFE & HEALTH: HEIGHTENED DUTY TO BE CAREFUL. 

When a claimant’s work involves critical risks to the life and health of other persons, a higher degree of care is required. The claimant [who made a number of negligent errors] was discharged for gross misconduct. Roberts v. Maryland Medical Lab, Inc., 1215-BR-88.

         12.   FIGHTING ON THE JOB / RIGHT TO SELF-DEFENSE

An individual may use nondeadly force in self-defense anytime he reasonably believes that unlawful force is about to be used against him. This is true even where one is defending himself against an attack by his superiors on the job. Winchester v. Joseph J. Hock Company, 232-BH-83.

III.              HOW TO PROPERLY CITE CASES

A.    Include the RELEVANT PORTION of the applicable blurb in the *CONCLUSIONS OF LAW* section of your decision.  If part of a blurb is irrelevant to, or antithetical to, the facts before you, edit that part out. 

B.    EXPLAIN the relevance of the cited precedent in the *EVALUATION OF EVIDENCE* section of your decision.  This will generally require you to APPLY YOUR FACTS to the precedent.

C.    Generally speaking, EVERY PRECEDENTIAL CASE that cited in your *COL* should be EXPLAINED in your *EOE* … AND every case discussed in your *EOE* should first be cited in your *COL*.

D.    EXAMPLES

    1.    Facts do not match precedent ... and precedent not placed in COL section

    2.    Precedent misapplied (and/or not explained how decision was reached) ... and precedent not placed in COL section

    3.    Missing precedent [In this case, Sortino]