Board of Review Decision 352-MPMD-VN6P

Pursuant to G.L. c. 151A, §§ 29 and 1(r), the claimant was not in unemployment during the week he refused work because he remained outside the U.S. due to a flight delay.

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Issue ID: 352-MPMD-VN6P

Board of Review Decision

Introduction and Procedural History of this Appeal 

The employer appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to award unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and we affirm in part and reverse in part. 

The claimant filed a claim for unemployment benefits with the DUA, effective December 15, 2024, which was approved in a determination issued on August 20, 2025. The employer appealed the determination to the DUA hearings department. Following a hearing on the merits, attended only by the employer, the review examiner affirmed the agency’s initial determination and awarded benefits in a decision rendered on December 24, 2025. We accepted the employer’s application for review.

Benefits were awarded after the review examiner determined that the claimant was in partial unemployment and, thus, was not disqualified under G.L. c. 151A, § §§ 29 and 1(r). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the employer’s appeal, we remanded the case to the review examiner to obtain additional evidence regarding the number of hours worked and gross earnings paid during the claimant’s weeks of employment with the instant employer. Only the employer attended the remand hearing. Thereafter, the review examiner issued her consolidated findings of fact. Our decision is based upon our review of the entire record. 

The issue before the Board is whether the review examiner’s decision, which concluded that that the claimant was in partial unemployment because he worked part-time and accepted all work offered to him by the instant employer, the claimant’s subsidiary employer, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s consolidated findings of fact and credibility assessment are set forth below in their entirety:

1. The claimant filed a claim for unemployment insurance benefits effective December 15, 202[4] with a benefit year end of December 13, 2025. The Department of Unemployment Assistance determined the claimant’s weekly benefit amount to be $893.00 with an earnings disregard of $297.67.
2. In 2019, the claimant began working as a part-time dishwasher for the instant employer, a restaurant. 
3. The claimant typically worked for the instant employer during the weekend, Friday-Sunday.
4. The claimant earned $19.00 per hour. 
5. The employer’s pay period is weekly, Tuesday through Sunday.
6. On an unknown date, the claimant began working full-time with another employer (employer A), a construction company. The specific details about the claimant’s employment with employer A are unknown. 
7. During the claimant’s base period, the claimant was paid more wages by employer A than he was paid by the instant employer. 
8. The claimant typically separates from employer A in the winter months. 
9. The claimant was traveling out of the country on February 21, 2025. 
10. The claimant did not certify for the week ending February 22, 2025. 
11. The claimant was scheduled to work on February 23, 2025, from 11:00 a.m.-9:00 p.m.
12. On February 21, 2025, the claimant contacted the employer and told her that he would not be available to work on February 23, 2025, because his flight was cancelled.
13. During the week beginning February 23, 2025, the claimant worked 25.50 hours from February 27, 2025, through March 1, 2025, for the employer and earned gross wages of $484.50.
14. During the week beginning March 2, 2025, the claimant worked 26 hours and earned $494.50 in gross wages. 
15. The claimant did not refuse any work that was offered to him during the week beginning March 2, 2025. 
16. The claimant separated from the instant employer on September 13, 2025. 

Credibility Assessment:

In this case, it has been established that the claimant had been employed on a part-time basis. However, the evidence also shows that although the claimant was scheduled to work for the employer on February 23, 2025, he did not work because he was traveling abroad.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the consolidated findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s consolidated findings of fact and deems them to be supported by substantial and credible evidence. We further believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the claimant is entitled to benefits for week ending March 1, 2025. 

To be eligible for unemployment benefits, the claimant must show that he is in a state of unemployment within the meaning of the statute. G.L. c. 151A, § 29, authorizes benefits to be paid to those in total or partial unemployment. Those terms are defined by G.L. c. 151A, § 1(r), which provides, in relevant part, as follows:  

(1) “Partial unemployment”, an individual shall be deemed to be in partial unemployment if in any week of less than full-time weekly schedule of work he has earned or has received aggregate remuneration in an amount which is less than the weekly benefit rate to which he would be entitled if totally unemployed during said week; provided, however, that certain earnings as specified in paragraph (b) of section twenty-nine shall be disregarded. . . .   

(2) “Total unemployment”, an individual shall be deemed to be in total unemployment in any week in which he performs no wage-earning services whatever, and for which he receives no remuneration, and in which, though capable and available for work, he is unable to obtain any suitable work.   

Pursuant to these provisions, claimants are only eligible for benefits if they are physically capable of, available for, and actively seeking full-time work, and they may not turn down suitable work. 

In this case, we have confined our analysis to the period during which the claimant worked for the instant employer while claiming benefits, February 23, 2025, through March 8, 2025. See Consolidated Findings 1, 2, 10, 13, 14 and 16.

Prior to filing his claim for benefits, the claimant worked full-time for a construction company while working part-time for the instant employer. See Consolidated Findings 2, 6, and 7. Upon separating from the primary employer, the claimant continued to work for the instant employer during the period between the effective date of his claim and his separation from the instant employer. See Consolidated Findings 1, 6, 8, and 16. Absent any indication that the claimant had any limitations on his capability or availability for full-time work during this period, and we see none, he was in partial unemployment during any week he earned gross wages less than $1,190.67, which is the sum of his weekly benefit amount ($893) plus his earnings disregard ($297.67). In any week in which he earned wages exceeding that total amount, he was not eligible for benefits. 

For the week ending March 1, 2025, the claimant earned less than his weekly benefit amount. See Consolidated Finding 13. However, he is not eligible for benefits for that week. The claimant was scheduled to work his regular shift as a dishwasher on Sunday, February 23, 2025, but he declined to work that day because he was unable to return to the United States due to his flight being cancelled. See Consolidated Findings 2, 3, 9, 11, and 12. Even though the claimant’s return flight was delayed through no fault of his own, he chose to travel abroad and thus rendered himself unavailable for work. As such, the claimant has not shown good cause for rejecting suitable work. Therefore, he was not in unemployment withing the meaning of the above provisions during week ending March 1, 2025.  

As of the week ending March 8, 2025, the claimant worked all hours offered by the instant employer and earned gross wages of $494.50. See Consolidated Findings 14 and 15. Because the claimant’s earnings for that week only exceeded his earnings disregard by $196.83, he was in partial unemployment during the week ending March 8, 2025. 

We, therefore, conclude as a matter of law that the claimant was not in total or partial unemployment within the meaning of G.L. c. 151A, §§ 29 and 1(r), for the week ending March 1, 2025. We further conclude that the claimant was in partial unemployment within the meaning of G.L. c. 151A, §§ 29 and 1(r), during the week ending March 8, 2025. 

The review examiner’s decision is affirmed in part and reversed in part. The claimant is denied benefits for the week ending March 1, 2025. He is entitled to partial benefits during the week ending March 8, 2025, if otherwise eligible. 

Boston, Massachusetts                                              Date of Decision – April 21, 2026

1. The DUA’s electronic record keeping system shows that the claimant also filed for benefits for the week ending January 25, 2025. However, the agency denied him benefits for the separate reason that it was his waiting week. 

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court.
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

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Please be advised that fees for services rendered by an attorney or agent to a claimant in connection with an appeal to the Board of Review are not payable unless submitted to the Board of Review for approval, under G.L. c. 151A, § 37.

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