Board of Review Decision 352-N46M-V96H

The claimant was discharged after he had been unable to work for a month because he was incarcerated and unable to make bail. Held the claimant’s inability to afford bail was a mitigating circumstance, and the claimant is eligible for benefits under G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-N46M-V96H

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 affirm. 

The claimant separated from his position with the employer on October 16, 2024. He filed a claim for unemployment benefits with the DUA, effective January 12, 2025, which was denied in a determination issued on September 30, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended by both parties, the review examiner overturned the agency’s initial determination and awarded benefits in a decision rendered on February 13, 2026. We accepted the employer’s application for review.

Benefits were awarded after the review examiner determined that the claimant voluntarily left employment for urgent, compelling, and necessitous reasons and, thus, was not 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, and the employer’s appeal.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant left his job for an urgent, compelling and necessitous reason when he was incarcerated and unable to make bail, 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 began working for the employer, a car wash and gas station, on January 13, 2024, until his separation on October 16, 2024.
2. The claimant’s last physical day of work was on September 19, 2024. 
3. On September 20, 2024, the claimant was scheduled to work 2 p.m.-6 p.m. in a position at the car wash, but because it was raining, the claimant was called off his shift.
4. Since the claimant was called off this shift, he picked up part of his coworker’s shift on September 20, 2024, which was scheduled from 6 p.m.-10 p.m.
5. Sometime in the afternoon of September 20, 2024, prior to 6 p.m., the claimant was arrested for charges relating to possession and engaging in sex with a minor.
6. After being detained, the claimant called his supervisor (Supervisor) from the detention facility and left a voicemail to inform her that he was arrested and would not be able to work the shift.
7. The claimant’s bail was set at $5,000, and he could not afford to pay this.
8. At some point on either September 21 or September 22, 2024, the claimant’s father (Father) went to the employer’s place of business to talk with Supervisor. Father was attempting to raise money to help pay the claimant’s bail. He also wanted to “to tell her what was going on.” Supervisor informed him that they would try to hold the job for the claimant.
9. The employer held the claimant’s job for one month, officially terminating him on October 16, 2024.
10. The employer did not terminate the claimant because of the nature of the crime. They separated him from his employment because the claimant did not return to work after a month.
11. The claimant was released from incarceration on January 3, 2025.
12. After his release, the claimant spoke to Supervisor and asked to return to work. Supervisor told [sic] claimant that when she had a position open, she would call him.
13. Supervisor never called the claimant with an offer to return to work.
14. If the claimant had wanted to return to work, Supervisor would have been an appropriate person to contact. 
15. The claimant contacted another supervisor (Supervisor 2) to see if he could return to work sometime after January 3, 2024.
16. Supervisor 2 told him that “the roster was full” and had the claimant do odd jobs at his house for pay while the claimant waited for a position to open.
17. The store manager (Manager) never heard from the claimant, but was aware that he was incarcerated without a known release date because Supervisor told Manager about her September 21/22, 2024, conversation with Father.
18. As of the date of the hearing, the claimant has not been convicted of the alleged crimes. The proceedings are ongoing.

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. Upon such review, the Board adopts the review examiner’s findings of fact except as follows. There appears to be a typographical error in Finding of Fact 15 which states, in relevant part, that the claimant spoke to Supervisor 2 sometime after January 3, 2024. Consistent with the record and Finding of Fact 11, we believe that the review examiner intended to find that the claimant spoke to Supervisor 2 sometime after January 3, 2025. In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. As discussed more fully below, we agree that the claimant is eligible for benefits. However, we reach this conclusion under a separate provision of G.L. c. 151A, § 25(e). 

The first issue we must decide is whether the claimant quit his employment or was discharged. 

In her hearing decision, the review examiner deemed the claimant to have voluntarily quit his job by abandonment and analyzed the claimant’s separation under G.L. c. 151A, § 25(e)(1). We have held that, where a claimant is fired for failing to notify the employer of the reason for absence, the separation is to be treated as a voluntary resignation. See Olechnicky v. Dir. of Division of Employment Security, 325 Mass. 660, 661 (1950) (upholding the Board of Review’s conclusion that the failure of an employee to notify his employer of the reason for absence is tantamount to a voluntary leaving of employment within the meaning of G.L. c. 151A, 
§ 25(e)(1)). 

However, the findings do not support such a ruling of job abandonment as meant under Olechnicky. In this case, the claimant notified his supervisor right away in a voicemail that he would not be able to work his shift because he had been arrested. See Finding of Fact 6. A day or two after the claimant was arrested, his father informed the employer that the claimant was incarcerated without a known release date. See Findings of Fact 5, 8 and 17. Therefore, the claimant did not fail to notify the employer of his absence. Without evidence that the claimant otherwise resigned, and we see none, his separation is treated as a discharge. See Finding of Fact 9.

Because the claimant was discharged, we analyze his eligibility for benefits pursuant to G.L. c. 151A, § 25(e)(2), 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 . . . (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee’s incompetence . . . .

“[T]he grounds for disqualification in § 25(e)(2) are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.” Still v. Comm’r of Department of Employment and Training, 423 Mass. 805, 809 (1996) (citations omitted).

Here, the employer did not present any written policies or rules about attendance, nor any evidence that it uniformly enforces them. Therefore, it cannot be concluded that the claimant was discharged for a knowing violation of a reasonable and uniformly enforced rule or policy.

We next consider whether the employer has met its burden to show that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. 

The employer discharged the claimant because he had not returned to work a month after he had been arrested. See Findings of Fact 5, 9 and 10. Although there is no question that the claimant did not report for work during this time, the employer did not show that the claimant acted in wilful disregard of its interest. 

To determine whether an employee’s actions were in wilful disregard of the employer’s interest, the proper factual inquiry is to ascertain the employee’s state of mind at the time of the behavior. Grise v. Dir. of Division of Employment Security, 393 Mass. 271, 275 (1984). To evaluate the claimant’s state of mind, we must “take into account the worker’s knowledge of the employer’s expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Garfield v. Dir. of Division of Employment Security, 377 Mass. 94, 97 (1979) (citation omitted).

Inasmuch as the claimant called his supervisor to say he could not report to work for his shift on September 20, 2024, and had his father follow up to further explain the reason for the claimant’s absence, we can reasonably infer that the claimant knew the employer expected him to return to work. This expectation to report for work is reasonable. However, the record shows there were mitigating circumstances that prevented the claimant from doing so.

Mitigating circumstances include factors that cause the misconduct and over which a claimant may have little or no control. See Shepherd v. Dir. of Division of Employment Security, 399 Mass. 737, 740 (1987). Here, the claimant could not afford to post bail. See Finding of Fact 7. As the review examiner noted in the conclusions and reasoning section of her decision, the claimant’s inability to afford bail was, ultimately, the reason that the claimant could not get out of jail and go to work. That the claimant’s bail was set at an amount that he could not afford was a circumstance outside the claimant’s control. 

We, therefore, conclude as a matter of law that the claimant was discharged. We further conclude that the employer did not carry its burden to show that the claimant knowingly violated a reasonable and uniformly enforced rule or policy or engaged in deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, 
§ 25(e)(2). 

The review examiner’s decision is affirmed. The claimant is entitled to receive benefits for the week ending September 28, 2024, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – June 11, 2026

Martha M. Wishart, Esq.
Chair

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.

REB