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Page breaks have been moved slightly to avoid page splits in the middle of paragraphs. Hand written entries (signatures) are shown in italics and underlined. Last names of Yesmail employees have been replaced with the first name in brackets as is the practice on my web pages.

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
EMPLOYMENT DEPARTMENT

IN THE MATTER OF BRIAN P. CARR, Claimant

FINAL ORDER Ref #: NM Code(s): U70249 VQ-005.00

HISTORY OF THE CASE

On October 24, 2008 the Employment Department issued an administrative decision that the claimant voluntarily left work without good cause. The claimant appealed. The claimant participated in the hearing and testified. The employer participated in the hearing and was represented by Bob Quigly. Larry ... testified on behalf of the employer. The Employment Department did not participate in the hearing.

ISSUE

Shall claimant be disqualified from the receipt of benefits because of a separation, discharge, suspension or voluntary leaving from work? (ORS 657.176, ORS 657.190 and OAR 471-030-0038.)

EVIDENTIARY RULINGS

Claimant's Exhibits 1 through 7 were admitted without objection.

FINDINGS OF FACT

(1) The claimant, Brian Carr, was employed most recently as a client services engineer by @Once and its successor Yesmail (a direct mail marketing company), from September 15, 2004 through October 1, 2008.

(2) On October 1, 2008 the claimant's manager, John ..., asked the claimant to join him in the office of Larry ..., Human Resources manager. There, on a table in front of the claimant, was a document headed "Performance Improvement Plan and Final Written Warning for Brian Carr" (Warning). The claimant scanned the top two-thirds of the first page of the document. It described two "key performance areas that need immediate improvement." The first was working at home. On Wednesday, September 24, 2008 the claimant e-mailed that he would work from home the next day, although, according to the Warning, [John] had previously told him he did not "have work from home privileges and he [was] expected to work in the office during business hours." According to the Warning, on Wednesday September 25, 2008 the claimant worked from home, contrary to [John]'s "direct order."

(3) The second area of needed improvement identified in the Warning was that the claimant was not meeting the minimum productivity requirement of clearing 40 tasks per week. The Warning stated that if the claimant was deemed insubordinate for working at home on a nonapproved basis that would be considered a voluntary resignation, and if he failed to consistently meet the minimum productivity standards or other expectations, that would be considered an inability to perform his job and would lead to "separation from the company."

(4) The claimant, who had 35 years of experience in his field, believed it was impossible to complete 40 tasks per week, unless an employee did an incompetent, slipshod or incomplete job and then indicated that a task was completed. He had expressed this opinion to [John] several times in the past. At the meeting with [John] and [Larry] he mentioned that issue in passing but said they were unlikely to resolve it.

(5) During the course of the claimant's employment with Yesmail, members of his department had been permitted to work from home one day every two weeks and had flexible hours, so that the claimant completed 15% of his work from home. Two or three months before the October l, 2008 meeting [John] advised the claimant that his department (now down from six employees to the claimant and a new hire) was eliminating work from home. When the claimant questioned that policy [John] told the claimant he would get back to him with a response. The claimant believed, mistakenly, that most or all of the other employees who worked for the employer were allowed to work at home on a regular basis.

(6) The claimant worked at home for four hours on Sunday, September 28, 2008, and on October 1, 2008 he informed [John] that he would be working at home the next day. [John] had not communicated with the claimant about the policy on working from home since he told the claimant, several months earlier, that he would get back to him.

(7) It was the claimant's understanding, from an internal document issued by [John] before the October 1, 2008 meeting, that the reference in the Warning to work during "business hours" meant that [John] now expected him to work from 9 to 5 every day unless the claimant had prior approval to take leave or a note from a doctor. The claimant's department was very short staffed, and [John] was reluctant to approve requests for paid time off.

(8) The claimant sometimes wanted to adjust his hours for personal errands such as car repair and home maintenance. The claimant considered it impossible to comply with the expectation that he work from 9 to 5 every day. At the October 1, 2008 meeting he informed the managers that he "would be unable to meet the new restrictions on work hours and work locations." He offered to transfer to another department. He had started to looking for another position in the company several months earlier, after [John] first spoke to him about not working from home but had been unsuccessful, and no other jobs were available for him on October 1, 2008. (Earlier he applied for a company position which he did not get, and was told there might be another opening after January 1, 2009.) The claimant offered, at the meeting with [John] and [Larry], to take a leave of absence until there was work available "which provided the flexibility in work location and work hours which [he] required." The employer did not grant leaves of absence for that purpose, and his request was declined.

(9) The claimant did not read the second page of the Warning. Above the signature line on that page was the following "Statement of Understanding":

I understand that my signature is not an admission of guilt, but is acknowledgment that the above was discussed with me. I acknowledge that I have read and fully understand the above-mentioned and the expectations established above. I am aware of the course of action that will be taken if the unacceptable performance/behavior persists.

The claimant stated during the hearing that he refused to sign a document saying that he would be in every day at 9 a.m. unless he had prior approval or a doctor's note.

(10) At the meeting on October l, 2008 the claimant asked [John] and [Larry] if they were telling him he could not work from home the next day. When they assented, the claimant stated that he could not work for the employer any longer as the employer was changing the terms and conditions of employment. [Larry] was very surprised. He told the claimant that the employer wanted him to continue working. He asked the claimant whether he intended to pack up and leave. The claimant said he did. The claimant was then asked for his badge and keys and escorted to his desk to collect his belongings.

CONCLUSION OF LAW

The claimant voluntarily left work without good cause.

OPINION

Oregon Revised Statute (ORS) 657.176 provides in part:

(1) An authorized representative designated by the Director of the Employment Department shall promptly examine each claim to determine whether an individual is subject to disqualification as a result of a separation * * *.

(2) An individual shall be disqualified from the receipt of benefits * * * if * * * the individual:

(a) Has been discharged for misconduct connected with work; [or]
       *****
(c) Voluntarily left work without good cause;
       *****

Oregon Administrative Rule (OAR) 471-030-0038 provides in part:

(1)(a) As used in ORS 657.176(2)(a) * * * and (c) and sections (1) through (5) of this rule * * * the term "work" means the continuing relationship between an employer and an employee. * * * [T]he date an individual is separated from work is the date the employer - employee relationship is severed. * * * .

       *****
(2) The distinction between voluntary leaving and discharge is:
(a) If the employee could have continued to work for the same employer for an additional period of time the separation is a voluntary leaving of work.
(b) If the employee is willing to continue to work for the same employer for an additional period of time but is not allowed to do so by the employer the separation is a discharge.

The claimant asserted that the employer asked him to agree to some conditions he thought were impossible, and he told [John] and [Larry] they were at a standstill. He asserts his separation was "involuntary." The claimant did not read the Warning carefully and completely, nor did he discuss it with [John] and [Larry], before ending his employment. Had the claimant read the Warning he would have seen that by signing it he was acknowledging that he had read and understood the document, had discussed it with the employer's representatives, and understood the consequences for non-compliance. Despite his apparent belief to the contrary, by signing it he would not have been agreeing, in bad faith, that he would meet the employer's expectations and requirements.

When [John] and [Larry] told the claimant on October 1, 2008 that he could no longer work from home without prior approval, and he could not work from home the next day, the claimant told them he could no longer work for the employer and said, in response to a question from [Larry], that he intended to pack up his belongings and leave. The employer would have allowed the claimant to continue working after October 1. The claimant quit his job.

OAR 471-030-0038 provides in relevant part:

(4) Good cause for voluntarily leaving work under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work. For an individual with a permanent or long-term "physical or mental impairment" (as defined at 29 CFR §1630.2(h)) good cause for voluntarily leaving work is such that a reasonable and prudent person with the characteristics and qualities of such individual, would leave work. For all individuals, the reason must be of such gravity that the individual has no reasonable alternative but to leave work.

The claimant had a reasonable alternative to quitting his job, which was to sign the Warning, acknowledging he was aware of its content and had discussed it with the managers; reschedule his commitment(s) for October 2, 2008; accept the fact that he was not allowed to take a day off every two weeks; and continue to work for the employer. If in the future he had a disagreement with [John] about prior approval of paid time off which could not be resolved,¹ or if he could not do his work responsibly and accomplish 40 tasks per week, the employer might have discharged him. It was also possible, however, that another job to which he could transfer would become available on January 1, 2009 (a possibility of which he was aware). The claimant quit his job without good cause.

ORDER

The administrative decision mailed October 24, 2008 is affirmed. Claimant is subject to disqualification from benefits under ORS 657.176(2)(c), effective September 28, 2008, until requalified under Employment Department law.

Betty Smith
Administrative Law Judge
Office of Administrative Hearings

APPEAL RIGHTS

You may appeal this decision by filing a written request for review with the Employment Appeals Board within 20 days of the date that this decision is mailed. See ORS 657.270(4). If you have questions, please refer to the publication `Rights of Review of a Hearing Decision' (UI Pub 15). If you did not receive a copy of 'Rights of Review of a Hearing Decision', call the Office of Administrative Hearings at 1-800-311-3394 to request a copy.

Public Assistance and Food Stamps may be denied if a decision denying unemployment insurance benefits becomes final without an appeal.

NOTICE: If this decision reverses any initial decision to pay benefits on your claim and if this decision becomes final without further appeal, an overpayment may be determined to exist. Further benefits otherwise payable during the benefit year may be deducted to recover the erroneous payment. After the final date indicated on this decision, you will receive further information regarding your overpayment.

If you did not appear at the hearing, you may request to reopen the hearing. These requests are governed by OAR 471-040-0040 and 471-040-0041 and should be filed with the Office of Administrative Hearings. Your request to reopen the hearing must: 1) be in writing; 2) show that factors or circumstances beyond your reasonable control caused you to miss the hearing; and 3) either be filed within 20 days of when the order from the hearing you missed was mailed, or else show that factors or circumstances beyond your reasonable control prevented you from filing your reopen request within that time, in which case it must also show that you filed your hearing request within seven days of when those factors or circumstances ceased to exist. Include all information regarding your reopen request that you want the Administrative Law Judge to consider when deciding whether to grant your reopen request. Requesting to reopen a hearing with the Office of Administrative Hearings is not the same as seeking review of the order by the Employment Appeals Board.

Servicemembers' Civil Relief Act

No party, unless stated above, has notified the Office of Administrative Hearings (OAH) that any participant is a person in military service subject to the Servicemembers' Civil Relief Act. The OAH has no reason to believe that a party to this matter is subject to the Act. If a party to the proceeding is a service member and did not appear for the hearing, within the service members period of service, or 90 days after his/her termination of service, the OAH will review any request from the service member to reopen or vacate the decision if the service member can show that he or she has a good and legal defense to the claim and can show prejudice resulting from not being able to appear personally in the matter.