NOTE: THIS PAGE IN INTENDED TO HELP HEARING EXAMINERS WRITE BETTER DECISIONS. IT IS NOT INTENDED TO ADDRESS *ALL* PROBLEMATIC ISSUES, NOR DOES IT ADDRESS AN EXHAUSTIVE LIST OF ALL THE THINGS THAT MIGHT BE WRONG WITH A DECISION. IF YOU HAVE ANY QUESTIONS ABOUT A SPECIFIC CASE, YOU SHOULD ADDRESS THOSE TO JUDY, SUE OR THE AO.
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REQUIREMENTS FOR WRITTEN DECISIONS IN SEPARATION CASES
I. FINDINGS OF FACT ("FOF")
A. FIRST PARAGRAPH. First paragraph of the FOF should have the following:
1. First day of work. If you cannot obtain the precise first day, then obtain a best estimate of the first day.
2. Last day of work. YOU ABSOLUTELY MUST OBTAIN AN ACCURATE LAST DAY OF WORK.
3. Job title.
4. Rate of pay, when relevant. For example, rate of pay may be relevant in some quit cases.
5. State whether the claimant quit or was discharged.
B. SPECIFIC FACTUAL FINDINGS. Your FOF need to include SPECIFIC FACTUAL FINDINGS as to what caused the separation to take place. CONCLUSORY STATEMENTS ARE NOT FACTS. For example, saying that the claimant was "rude" or was "not rude" is NOT a fact. You need to identify what SPECIFIC thing the claimant did (or was accused of doing) and identify/discuss THAT.
C. AVOID RECITING THINGS THE PARTIES "BELIEVED" BUT WHICH YOU ARE NOT FINDING ACTUALLY OCCURRED. FOF should rarely state what a party believed. Generally, what a party believes is not a FOF, but is a recitation of testimony. When relevant, you need to make a specific finding as to what a party believed actually occurred. For example, you CAN say that the claimant was terminated because the employer believed that the claimant was sleeping on the job (because that is the employer's basis for the termination), HOWEVER you ALSO need to state in the FOF affirmatively whether the claimant actually was sleeping on the job or not (i.e., whether the underlying event upon which the termination was based actually occurred).
D. AVOID RECITING TESTIMONY. If you wish to discuss the parties' "contentions" (i.e., the things to which the parties testified which you are NOT finding actually occurred), generally the place to do that is in your Evaluation of Evidence.
E. ATTEMPT TO QUANTIFY. If the separation is predicated upon a relatively large number of similar events (for example, lateness), you CANNOT simply state that the events occurred "frequently". You need to attempt to identify the specific number of instances and the timeframe in which they occurred (for example, "The claimant was late by at least 10 minutes on twelve occasions during the last four months of her employment").
F. ATTEMPT TO PROVIDE DETAILS. If the separation is predicated upon a relatively small number of events, you should identify the dates and specifics for each event.
G. FOCUS ON RELEVANCE. EVERY SENTENCE IN THE FINDINGS OF FACT NEEDS TO BE RELATED TO THE REASON FOR SEPARATION.
II. CONCLUSIONS OF LAW - You NEED to familiarize yourself with the ENTIRE precedent manual. (Click HERE for a link.) What follows is a list of some of the most common precedents you might need to cite; it is NOT an exhaustive list.
A. USEFUL QUIT PRECEDENTS
1. QUIT IN ANTICIPATION OF DISCHARGE. 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.
2. QUIT FOR A BETTER JOB
a. GENERAL RULE. 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.
b. EXCEPTION. However, a finding of valid circumstances is still 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. This precedent has been used where the claimant left one job without benefits to accept a job that offered benefits.
3. UNABLE 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.
B. USEFUL DISCHARGE PRECEDENTS
1. LAW REGARDING DRUG CASES.
A. GENERAL LAW. Section 17-214.1(c)(1)(iv) of the Health-General Article of the Annotated Code of Maryland 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:
(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,…;
(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 (d) of this section permitting an employee to request independent testing of the same sample for verification of the test result.
B. 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. See also: 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.
III. EVALUATION OF EVIDENCE ("EOE")
A. EDIT YOUR FIRST PARAGRAPH. If there was only one party at your hearing, and thus there was no "conflict" in testimony, you need to DELETE the last sentence of the first paragraph in the prototype decision ("Where the evidence was in conflict, the Hearing Examiner decided the Facts on the credible evidence as determined by the Hearing Examiner").
B. EXPLAIN YOUR CREDIBILITY FINDING. Where applicable (i.e., in two-party cases where the parties testify differently concerning critical facts), you MUST make a specific credibility finding. In other words, you must explain in detail why you found one party more credible than the other. Some of the things you can use to decide which party was more credible are: number of supporting witnesses, whether a party's case was based on hearsay or first-hand knowledge, the confidence with which they testified (was a party definitive or did they demonstrate uncertainty)
C. EXPLAIN YOUR FACTUAL FINDINGS. You must provide a detailed analysis as to which facts you are finding and, if necessary, you may need to explain how you deduced those facts from the evidence which was provided at the hearing.
D. AVOID "POP-UP" FACTS. BEFORE sending your decision to the Word Processing Center, you MUST make sure that ALL of the facts you are discussing in your EOE section were previously discussed in your FOF section. This problem of "pop-up" facts is a common one, but is easily avoided.
E. APPLY THE FACTS TO THE LAW. You MUST set forth a simple summary statement which applies the facts as you found them to the dispositive law. For example, "The claimant's four consecutive occurrences of being a no call/no show constitute a deliberate and willful disregard of standards that an employer has a right to expect and that shows a gross indifference to the employer's interests, and thus demonstrate gross misconduct within the meaning of Section 8-1002."
IV. DECISION
A. GET THE PENALTY CORRECT. Remember, for example, that a quit for valid circumstances has a 5 to 10 week penalty, but that a discharge for simple misconduct has a 10 to 15 week penalty.
B. GET THE REVERSED/AFFIRMED/MODIFIED CORRECT.
1. A case is REVERSED if your decision EITHER
(a) relies on a different section of law from the Benefit Determination (for example, you change a quit to a discharge)
(b) imposes a penalty upon a claimant for whom the Benefit Determination allowed benefits, or
(c) TOTALLY removes a penalty from a claimant on whom the Benefit Determination imposed a penalty.
2. A case is MODIFIED if your decision EITHER
(a) imposes a different penalty under the SAME section of law as the Benefit Determination (for example, you change a quit without good cause to a quit with valid circumstances, or you lower the number of penalty weeks in a simple misconduct), or
(b) you keep the penalty the same as the Benefit Determination but you change the starting date of the penalty.
3. A case is AFFIRMED *ONLY* if you are imposing the EXACT SAME decision as did the Benefit Determination.
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