Gomillion v. District of Columbia Department of Employment Services

FERREN, Associate Judge,

concurring:

Although I concur in the result, I cannot join in the opinion of the court. In ignoring the sequence of statutory and regulatory amendments, the court does not make clear that the result here is limited to cases arising during the period between March 3, 1979 and November 20, 1981.

I.

Until March 3, 1979, D.C.Code 1973, § 46-310(a) provided in part:

An individual who has left his most recent work without good cause, as deter *452 mined by the Board under regulations prescribed by the District of Columbia Council, shall not be eligible for benefits

The applicable regulations, 18 D.C.R.R. § 801.1, provided in part:

(a) ... where it appears that the leaving was voluntary, the burden of proof shall be on the claimant to establish good cause. What is good cause for leaving will accordingly depend on the facts in each case and will not be confined to causes connected solely with the employment itself. The test will be — what would the reasonable and prudent individual in the labor market do in like circumstances. [Emphasis added.]

(b) For example, the following in general, would not be considered good cause for leaving:

******

(6) Vague prospects of other work deemed by the claimant more desirable. ******

If the foregoing statute and regulations were applicable here, the conclusion would be irresistible that a voluntary departure from one’s job to accept a firm offer of manifestly better employment — in contrast with a “vague prospect[ ] of other work,” id. —would be “good cause” for leaving. A “reasonable and prudent individual in the labor market,” id., would likely make that choice. Thus, the employee would not be disqualified from unemployment benefits if, as in the present case, the firm offer fell through.

On March 3, 1979, the statute, D.C.Code 1980 Supp., § 46-310(a) was amended in relevant part to read as follows:

An individual who left his most recent work without good cause connected with the work, as determined by the Board under regulations presented by it, shall not be eligible for benefits .... [Emphasis added.]

Thus, there were two basic changes: First, good cause for voluntarily leaving a job must be “connected with the work,” in contrast with the former regulation that “good cause ... will not be confined to causes connected solely with the employment itself.” 18 D.C.R.R. § 301.1(a). Second, the Board, not the Council, was given authority to promulgate the regulations.

II.

On July 7, 1980, over a year after the statute was amended but before the Board issued new regulations, 1 petitioner left BEMA Equipment Company to accept what he perceived to be a firm offer of a substantially higher paying job with his former employer, Maeben Company, Inc. Ante at 450 & n.3.

Based solely on the new statutory language — that “good cause” must be “connected with the work” — the Claims Deputy, Appeals Examiner, and Acting Director of DOES finally determined as of January 16, 1981, “(1) that petitioner voluntarily left his employment with BEMA, (2) that such leaving was without good cause connected with the work at BEMA, and (3) that petitioner was for these reasons disqualified for unemployment benefits.” Ante at 2. I agree with my colleagues that — without benefit of interpretative regulations by the Board — we must defer to DOES’ ad hoc interpretation of amended § 46-310(a), namely that “good cause connected with the work” means, in effect, there must be something wrong with one’s present job that triggers the voluntary leaving. After the statutory amendment, that interpretation is not “ ‘unreasonable either in light of the record or prevailing law.’ ” Hockaday v. D.C. Department of Employment Services, D.C.App., 443 A.2d 8, 12 (1982) (citation omitted).

III.

The present decision, however, is applicable only to cases that have arisen during a limited time period, from March 3, 1979 to November 20, 1981, when the Board’s new regulations under the amended statute became effective. See 28 DCR § 4612 at *453 4965, 4976 (Nov. 20, 1981). Two points, therefore, should not be lost. First, DOES’ present interpretation — without reference to regulations — is only one of at least two reasonable interpretations of “good cause connected with the work” under § 46-310(a), as amended:

(1) There must be something “bad” about the present job that, in effect, drives the claimant away. A better job elsewhere does not make it “bad.” Thus, even with a firm offer of better employment elsewhere, there is no good cause connected with (read “attributable to”) the work; or

(2) There must be a reason for leaving directly connected with the most recent work, as a reference point. The words “connected with,” however, are content-neutral; they mean that the good cause must be related to, but not necessarily attributable to, the work. Thus, “good cause” can be an employment-connected reason found outside the present job, such as a firm offer of higher-paying work elsewhere which provides a better opportunity. 2

This latter interpretation is consistent with legislative history showing that the Council adopted the version of the statutory section proposed by the Mayor, who wrote:

The proposed changes to the disqualification provisions also aim at bolstering the trust fund, in addition to facilitating administration of these provisions and eliminating certain inequities. By limiting good cause for voluntarily leaving work to job-related factors, and by providing that disqualifications on separation begin with the week the claim is opened and not with the week of the actual separation, the bill represents a judicious effort to reduce access to benefits by persons whose unemployment is of their own making. (Emphasis added.) [Letter of Walter E. Washington, Mayor, to Sterling Tucker, Chairman of the Council of the District of Columbia at 2-3 (September 9, 1977).]

The legislature intended to limit “good cause for voluntarily leaving work to job-related factors,” id., in contrast with the regulations under the previous statute wherein “good cause for leaving . . . will not be confined to causes connected solely with the employment itself.” 18 D.C.R.R. § 301.1(a). The reference to “job-related factors,” however, is not necessarily so narrow that it must mean the present job, for some reason, has turned sour.

My second point addresses the relevance of the two possible interpretations. Effective November 20,1981 3 — ten months after the DOES disposition here — the Board adopted regulations, 28 DCR § 4612 at 4965, 4976, under the amended statute:

4612 VOLUNTARY LEAVING

4612.1 Pursuant to section 10(a) of the Act, the Director shall disqualify for benefits any individual who left his most recent work voluntarily without good cause connected with the work. * * * * * *

4612.5 The circumstances which constitute good cause connected with the work shall be determined by the Director based upon the facts of each case. The test shall be, “what would a reasonable and prudent person in the labor market do in the same circumstances?”

There follow sections 4612.6 and 4612.7 (set forth in the margin) containing examples, respectively, of what does not, and what does, constitute “good cause connected with the work.” 4 It would appear from the test *454 and examples in §§ 4612.5-.7, that the second interpretation of § 46-310(a), as amended, remains a live option for the period beginning November 20, 1981, under the new Board regulations; for a “reasonable and prudent person in the labor market,” 28 DCR § 4612.5 at 4976, might do what petitioner did here: give notice to his or her first employer after receiving a firm offer of a better paying job elsewhere.

I go into all this to make clear that this court, in deferring here to DOES’ interpretation of the amended statute (during the hiatus between regulations), should not be read to have announced a definitive interpretation for all time. The question under the statute, as interpreted in light of the new regulations, is open.

. See Hockaday v. D.C. Dept. of Employment Services, D.C.App., 443 A.2d 8, 11-12 (1982).

. My colleagues’ statement that “[t]he statute explicitly requires that ‘good cause’ be connected with the employee’s most recent work,” ante at 451 n.4, therefore begs the question.

. The regulations were proposed on July 17, 1981 and approved by the Board on October 22, 1981.

. 28 DCR § 4612.6 at 4976 provides:

The following shall not constitute good cause connected with the work for voluntary leaving:

(a) Refusal to obey reasonable employer rules;

(b) Minor reduction in wages;

(c) Transfer from one type of work to another which is reasonable and necessary;

(d) Marriage or divorce resulting in a change of residence;

*454 (e) General dissatisfaction with work;

(f) Resignation in order to attend school or training;

(g) Personal or domestic responsibilities.

28 DCR § 4612.7 provides:

Reasons considered good cause connected with the work for voluntary leaving include, but are not limited to, the following:

(a) Racial discrimination or harassment;

(b) Sexual discrimination or harassment;

(c) Failure to provide remuneration for employee services;

(d) Working in unsafe locations or under unsafe conditions;

(e) Illness or disability caused or aggravated by the work; Provided, that the claimant has previously supplied the employer with a medical statement;

(f) Transportation problems arising from the relocation of the employer, a change in the primary work site, or transfer of the employee to a different work site; Provided, that adequate, economical, and reasonably distanced transportation facilities are not available.