Board of Review Decision 352-N3N5-FH69

Claimant, who quit her part-time subsidiary job less than four weeks prior to filing her claim for disqualifying reasons was ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(1). However, because her average weekly wage from the instant subsidiary employer during the last completed quarter of her base period was less than her earnings disregard, her constructive deduction was $0.00, meaning she is entitled to receive her weekly benefit amount, notwithstanding this disqualifying separation.

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Issue ID: 352-N3N5-FH69

Board of Review Decision

Introduction and Procedural History of this Appeal 

 The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny 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 separated from her position with the employer on May 31, 2025. She filed a claim for unemployment benefits with the DUA, effective June 22, 2025, which was denied in a determination issued on September 15, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits, attended by both parties, the review examiner affirmed the agency’s initial determination and denied benefits in a decision rendered on March 9, 2026. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant voluntarily left employment without good cause attributable to the employer and without urgent, compelling, and necessitous reasons. Thus, she was disqualified under G.L. c. 151A, § 25(e)(1). Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, the claimant’s appeal, and information available to us through the DUA’s recordkeeping database.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant’s separation from this employer to attend school was without good cause attributable to the employer or urgent, compelling, and necessitous reasons and rendered her totally ineligible for benefits, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

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

1. The claimant worked part-time for the instant employer, a home care company, as a personal care assistant from January 3, 2024 [sic], to May 31, 2025. The claimant’s rate of pay was $17.00 per hour. 
2. The claimant also works full-time for a second employer, [Employer B], beginning [sic] in 2022 with summer layoffs from June to August each year. 
3. For the instant employer, the claimant provided her schedule availability to the scheduling department as Monday, Friday and Saturday from 6:00 p.m. to 6:00 a.m. The employer then provides a scheduling application to all employees, with open shifts within the employees’ available hours/days. 
4. The claimant is enrolled full-time in an associate of human services college program with an expected graduation date of May 2026. 
5. For the year of 2025, the claimant averaged two shifts per week, 6:00 p.m. – 6:00 a.m. until May 31, 2025. The client primarily worked with one client. 
6. On or about May 21, 2025, the claimant submitted a letter to her employer stating that she was resigning, effective two weeks from today. She stated that her decision was temporary as she has enrolled in college classes over the next two months and stated that she would like to come back after her academic period is over. She thanked her employer for the opportunity to work with them. 
7. The employer had work available for the claimant within her stated schedule at the time the claimant quit. 
8. The same client and hours that the claimant was scheduled, were available at the time the claimant quit. The employer found a note in the client’s file stating that he did not want to have any substitute caregivers scheduled until his [aide] came back from summer vacation. 
9. The claimant’s employment was not in jeopardy at the time of her quit [sic]. 
10. On June 24, 2025, the claimant filed for Unemployment Insurance (UI) with an effective date of June 22, 2025. The weekly benefit amount is $772 with an earnings exclusion of $257.

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 findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. After such review, the Board adopts the review examiner’s findings of fact except as follows.

In Finding of Fact 1, the review examiner found that the claimant began working for the instant employer on January 3, 2024. However, during the hearing, both parties testified that the instant employer purchased the company for which the claimant had been working since January of 2024, and, thus, the claimant did not actually begin her employment with the instant employer until after February 1, 2025.

In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. However, as discussed more fully below, while we agree with the review examiner that the claimant’s separation from this employer was disqualifying, we disagree with the review examiner’s decision to subject the claimant to full disqualification from the receipt of benefits based upon her separation from this employer. 

The review examiner rendered her decision pursuant to G.L. c. 151A, § 25(e)(1), which provides, in pertinent part, as follows:

[No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter] . . . (e) For the period of unemployment next ensuing . . . after the individual has left work (1) voluntarily unless the employee establishes by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent . . . [or] if such individual established to the satisfaction of the commissioner that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary.

These provisions expressly place the burden of proof upon the claimant.  

As the review examiner’s analysis noted, nothing in the record indicates that the employer engaged in any conduct which caused the claimant to resign. Thus, the claimant did not separate for good cause attributable to the employer. See Conlon v. Dir. of Division of Employment Security, 382 Mass. 19, 23 (1980) (to show good cause attributable to the employer, the focus is on the employer’s conduct and not on the employee’s personal reasons for leaving).

With regard to whether the claimant left work for urgent, compelling, and necessitous reasons, the Supreme Judicial Court held that we must examine the circumstances in each case and evaluate “the strength and effect of the compulsive pressure of external and objective forces” on the claimant to ascertain whether the claimant “acted reasonably, based on pressing circumstances, in leaving employment.” Reep v. Comm’r of Department of Employment and Training, 412 Mass. 845, 848, 851 (1992). 

Here, the claimant stated in her resignation letter that she was resigning because she was enrolling in college classes. See Finding of Fact 6. Resigning to attend school does not constitute an urgent, compelling, and necessitous circumstance. Thus, we agree with the review examiner’s conclusion that the claimant’s separation from this employer was disqualifying pursuant to G.L. c. 151A, § 25(e)(1). 

However, the findings also show that the claimant had full-time employment with another employer during her base period, where she typically had summer layoffs from June to August every year. See Finding of Fact 1. As the instant employment was only part-time, it was subsidiary employment. Because the claimant separated from part-time base period employment with this instant employer for disqualifying reasons under G.L. c. 151A, § 25(e)(1), the claimant is subject to a constructive deduction and not a full disqualification from benefits. Thus, we must consider 430 CMR 4.76, which provides, in relevant part, the following:

(1) A constructive deduction, as calculated under 430 CMR 4.78, from the otherwise payable weekly benefit amount, rather than complete disqualification from receiving unemployment insurance benefits, will be imposed on a claimant who separates from part-time work for any disqualifying reason under M.G.L. c. 151A, § 25(e), in any of the following circumstances:  

(a) if the separation is: . . . 

1. from subsidiary, part-time work during the base period and, at the time of separation, the claimant knew or had reason to know of an impending separation from the claimant’s primary or principal work; . . . .

The amount of the constructive deduction each week is determined by the claimant’s earnings from the part-time employer. The DUA regulation at 430 CMR 4.78(1)(a), provides, in relevant part: 

If the claimant's separation from part-time subsidiary work occurred in the last four weeks of employment prior to filing of the unemployment claim; the average part-time earnings will be computed dividing the gross wages paid by the subsidiary employer in the last completed quarter by 13. If there are less than 13 weeks of work, then the gross earnings shall be divided by the actual number of weeks worked. 

The review examiner found that, after separating from the instant employer on May 31, 2025, the claimant filed a claim for unemployment benefits, effective June 24, 2025. The claimant’s weekly benefit amount was $772.00, with an earnings disregard of was $257.00. See Finding of Fact 10. Her separation from the instant employer occurred in the last four weeks of employment prior to filing her claim, so the provisions of 430 CMR 4.78(1)(a) are applicable here. 

As noted above, the claimant’s employment with the instant employer began after the employer took over the company for which the claimant had previously worked on a part-time basis, which occurred on February 1, 2025. We note that the DUA’s recordkeeping database shows that this employer reported only $221.00 in total wages during the last completed quarter of her base period (January 1, 2025, through March 31, 2025). 

Although it is unknown how many weeks the claimant actually performed services for the instant employer during the last completed quarter of her base period, her gross wages ($221.00) are less than her earnings exclusion ($257.00), so whether the claimant worked one, two, or 13 weeks for the instant employer during that final quarter of her base period, dividing the $221.00 by any number of weeks would yield a constructive deduction that is less than her earnings exclusion. Given that the claimant’s average weekly wage was less than her earnings disregard, in effect, the constructive deduction is $0.00.

We, therefore, affirm the part of the review examiner’s decision which concluded that the claimant’s separation from the instant employer was without good cause attributable to the employer or urgent, compelling and necessitous reasons, and she is disqualified pursuant to G.L. c. 151A, § 25(e)(1). However, pursuant to the DUA’s constructive deduction regulations at 430 CMR 4.76 and 4.78, we reverse the portion of the decision that subjected the claimant to a full disqualification from the receipt of benefits. 

Beginning with the week ending June 28, 2025, the claimant is subject to a constructive deduction from her weekly benefits in the amount of $0.00. In effect, this means that the claimant will receive her full weekly benefit amount.

Boston, Massachusetts                                              Date of Decision – May 29, 2026

1. The date when the instant employer acquired the claimant’s prior employer, while not explicitly incorporated into the review examiner’s findings, is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today. See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).

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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JPCA/rh