Board of Review Decision 352-N43L-8H82

The claimant was unable to accept nursing shifts from the employer because her nursing license was suspended. During this period, she was not in unemployment within the meaning of G.L. c. 151A, §§ 29 and 1(r), because she was not making serious efforts to look for other work that she was qualified to do.

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Issue ID: 352-N43L-8H82

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 affirm. 

The claimant filed a claim for unemployment benefits with the DUA with an effective date of July 20, 2025. On September 24, 2025, the agency determined that the claimant was not entitled to benefits beginning on July 20, 2025, pursuant to G.L. c. 151A, §§ 29(a) and 1(r). The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended only by the claimant, the review examiner affirmed the agency’s initial determination and denied benefits in a decision rendered on December 17, 2025. We accepted the claimant’s application for review. 

Benefits were denied after the review examiner determined that the claimant was not in unemployment during the period in which she was not accepting work from the employer and, thus, was disqualified under G.L. c. 151A, §§ 29(a) and 1(r). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal, we remanded the case to the review examiner to obtain additional evidence pertaining to the claimant’s employment status and availability. Only the claimant participated in 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 the claimant was not in unemployment because she was not accepting all available work from the instant 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 is a nurse with a nursing license from the state of Rhode Island.
2. In July 2024, the claimant began working as an on-call nurse for employer A and employer B, two different nursing agencies.
3. Employer B is the instant employer in this case.
4. The claimant worked for both employers at different facilities. Her rate of pay was different for every facility that she worked at.
5. Both employers did not have any “guaranteed” hours for the claimant, and they also had the ability to cancel any offered hours when needs changed. 
6. The claimant worked more hours for employer A than she did for the instant employer. She would work for 40+ hours per week with employer A, and between 0 to 16 hours per week for the instant employer.
7. The claimant got her health and dental insurance through employer A.
8. From July 2024, the claimant only worked for employer A and the instant employer. She did not have any other employer.
9. On June 26, 2025, the claimant worked a shift for employer A. During her shift, the facility she was working at that day accused her of being “impaired” and sent her home for the day. When the claimant left the facility, she was pulled over by the police under suspicion of driving under the influence. The claimant was ultimately charged with DUI.
10. On June 26, 2025, employer A discharged the claimant due to the reports that she had been impaired at work that day.
11. After the claimant was discharged by employer A on June 26, 2025, the claimant continued to work for the instant employer.
12. On July 18, 2025, the claimant’s nursing license was placed under “review” and suspended by the state of Rhode Island. 
13. The claimant last worked for the instant employer on July 13, 2025.
14. The claimant stopped picking up any new shifts with the instant employer because her nursing license was suspended. After she realized that her license was suspended, she cancelled all shifts that she had previously accepted with the instant employer.
15. Since July 18, 2025, the claimant could not legally work as a nurse since her license was suspended. As such, she could not pick up any nursing hours from the instant employer.
16. Apart from nursing positions, the instant employer offers other positions such as medical technician positions, CNA positions, and LPN positions. All these positions need employees to be certified or licensed. The claimant does not have certifications or licenses that would make her eligible for the alternative jobs offered by the instant employer.
17. The claimant never resigned from her position with the instant employer. The instant employer has also never discharged her.
18. The claimant never notified the instant employer that her nursing license was suspended. The claimant never had any discussions with the instant employer about her employment status since July 2025. She simply stopped picking up any shifts. 
19. As of February 25, 2026, the instant employer’s app that the claimant would typically use to pick up hours is inaccessible to the claimant. The claimant assumes that is because she has not picked up any hours since July, 2025.
20. The claimant’s DUI was dismissed in October, 2025 for lack of jurisdiction.
21. As of February 25, 2026, the claimant’s nursing license is still suspended.
22. The claimant has been a nurse for about 36 years. She is available, willing to work, and is seeking work as a manager, a supervisor, or any other position in the medical field that does require an active nursing license.
23. The claimant applied for unemployment insurance (UI) benefits effective July 20, 2025.
24. The Department of Unemployment Assistance (DUA) approved the claimant for UI benefits based on her separation from employer A.
25. The DUA denied the claimant’s UI claim based on her work with the instant employer. The claimant appealed.

Credibility Assessment:

The claimant attended the initial hearing held on December 17, 2025, and the remand hearing held on February 25, 2026. The instant employer did not attend either of the hearings. The claimant’s testimony was consistent and forthcoming during both sessions and is credited as credible. 

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. After such review, the Board adopts the review examiner’s consolidated findings of fact except as follows. We reject the portion of Consolidated Finding 22, which states that the claimant is looking for work that does require a nursing license, as this appears to be a scrivener’s error. Consolidated Findings 12, and 14–15 establish that the claimant’s nursing license was suspended on July 18, 2025, and she has not been accepting and, therefore, not looking for work that requires such a license. In adopting the remaining findings, we deem 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. 

The issue before the Board is whether the claimant was in unemployment within the meaning of the Massachusetts Unemployment Insurance statute. Consequently, we analyze the claimant’s eligibility for benefits under G.L. c. 151A, § 29, which authorizes benefits be paid only to those in “total unemployment” or “partial unemployment.” These terms are in turn 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. . . . 

(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. 

The record before us indicates that, as of the remand hearing date, February 25, 2026, the claimant was still employed with the instant employer, as she had not resigned from her nursing position, and the employer had not notified her that she was discharged. See Consolidated Finding 17. However, the claimant has been unable to pick up nursing shifts from the employer, because her nursing license was suspended on July 18, 2025. Consolidated Findings 12 and 14–15. She last worked a shift for the employer on July 13, 2025. Consolidated Finding 13. 

The review examiner originally denied benefits to the claimant as of the start of the claim, July 20, 2025, because the claimant was not accepting all available hours due to the suspension of her nursing license. We remanded the case, in part, to obtain additional evidence pertaining to the claimant’s availability for other work. 

An employee is not disqualified from receiving benefits if she is temporarily disabled from doing the employer's work while capable of and available to do other work and making serious efforts to find other work. See Dir. of Division of Employment Security v. Fitzgerald, 382 Mass. 163–164 (1980). The claimant’s capability is not at issue here. Further, after remand, the review examiner found that the claimant was available for and willing to perform other work that did not require a nursing license. Consolidated Finding 22. The review examiner further found that the claimant, who had been a nurse for about 36 years, was seeking work as a manager or supervisor or any other position in the medical field that did not require an active nursing license. See id.

However, the claimant has not shown that her 36 years of experience as a nurse qualifies her to work in a managerial or supervisory position in the medical field or any other field. Further, while the review examiner found that the claimant is looking for non-supervisory positions in the medical field that do not require a nursing license, she also found that the claimant was not qualified for the employer’s other medical positions because she did not have the required certifications or licenses. Consolidated Finding 16. These consolidated findings show that the claimant is limiting her work search to positions for which she does not appear to have the necessary experience or qualifications. We do not believe that the claimant’s work-search efforts could reasonably lead to new employment, and, therefore, the claimant has not shown that she is making serious efforts to find other work.

We, therefore, conclude as a matter of law that the claimant was not in unemployment within the meaning of G.L. c. 151A, §§ 29 and 1(r), as of the start of her unemployment claim, July 20, 2025. 

The review examiner’s decision is affirmed. The claimant is denied benefits as of July 20, 2025, and until she meets the requirements of G.L. c. 151A, §§ 29 and 1(r). 

Boston, Massachusetts                                              Date of Decision – April 27, 2026

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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