Board of Review Decision 352-ND49-P2HT

Where the employer hair salon fired the claimant for performing hair styling work on a client that was not contracted with the employer, but the review examiner found that she was not paid for these off-premises services, the Board held the employer did not meet its burden to show that the claimant violated an employer policy or otherwise engaged in misconduct. The claimant is not disqualified pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-ND49-P2HT

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 reverse.

The claimant separated from her position with the employer on September 7, 2025. She filed a claim for unemployment benefits with the DUA, effective September 14, 2025, which was approved in a determination issued on November 12, 2025. The employer 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 denied benefits in a decision rendered on March 9, 2025. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest and, thus, was disqualified under G.L. c. 151A, § 25(e)(2). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal, we afforded the parties an opportunity to submit written reasons for agreeing or disagreeing with the decision. Only the claimant responded. 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 discharged for deliberate misconduct in wilful disregard of the employer’s interest because she stole hairpins from the employer’s salon, 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 as a full-time hair stylist for the employer, a salon and spa, from April 27, 2016, until September 7, 2025, when she separated. 
2. The claimant’s supervisor was the hair manager (manager). 
3. The employer maintains a policy that prohibits employees from engaging in theft. 
4. The employer does not have a current written handbook. 
5. The employer expected employees to refrain from engaging in theft. 
6. The purpose of this expectation is to protect the employer’s business interests. 
7. Violations of this expectation result in termination. 
8. The claimant was aware of this expectation as a matter of common sense. 
9. The claimant does hair for many clients, including client A (client A). 
10. Client A’s daughter was getting married on September 6, 2025. 
11. The claimant and other employees did client A and other members of the wedding party’s hair at the employer’s salon on September 5, 2025. 
12. The claimant, client A, and the rest of the wedding party excitedly discussed the wedding the following day, including how the claimant was going to do client A’s hair. 
13. Multiple employees overheard the claimant and client A discussing how the claimant was going to do client A’s hair for the wedding. 
14. Multiple employees believed that the claimant was contracted to do client A’s hair through the employer. 
15. The employer only gets paid for services if a client does a contract for a private event through them. 
16. At the end of her shift on September 5, 2025, the claimant packed up hair products, hair tools, some of the employer’s hair clips, and some of the employer’s hair pins to do client A’s hair the following day. 
17. The claimant packed up her own products and tools, along with the employer’s pins and clips. 
18. The claimant knew that she was taking pins and clips that belonged to the employer to use on client A the following day for a hair styling that the employer was not being paid for. 
19. The claimant would have been permitted to take the employer’s supplies, including pins and clips, if the employer was contracted for the services. 
20. The claimant felt that she could take the pins and clips from the employer because she needed them the following day and did [not] think the store to buy them at would be open. 
21. Client A did not have a contract with the employer for her hair to be done on September 6, 2025. 
22. On September 6, 2025, the claimant did client A’s hair for her daughter’s wedding and used employer clips and pins to do so. 
23. Client A did not pay the claimant for doing her hair on September 6, 2025. 
24. On September 7, 2025, the employer discharged the claimant for being paid to do client A’s hair without a contract through the employer and for using employer supplies for services that were not contracted through the employer. 
25. After her discharge, the claimant appeared at the employer’s workplace in the parking lot to give back the boxes of the employer’s pins and clips to a coworker.

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. We reject Finding of Fact 3 as unsupported by the evidence in the record. In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the claimant was not entitled to benefits. 

Because the claimant was discharged from her employment, her eligibility for benefits is governed by 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). 

As a threshold matter, to meet its burden under G.L. c. 151A, § 25(e)(2), the employer must show that the claimant engaged in some conduct which violated a policy, rule, or an employer expectation. Although the review examiner found that the employer maintained a policy prohibiting theft, such a policy was never introduced into evidence or discussed at the hearing. Instead, the employer’s witnesses testified that the claimant was discharged because she violated an employer policy prohibiting salon employees from doing business with the employer’s clients unless those services were contracted through the employer’s salon. See Finding of Fact 24. 

The claimant testified she had not received any pay for styling client A’s hair on September 6, 2025, because she was doing a favor for a friend. See Finding of Fact 23. The review examiner accepted this testimony as credible because the employer had not provided any evidence to the contrary. Such assessments are within the scope of the fact finder’s role, and, unless they are unreasonable in relation to the evidence presented, they will not be disturbed on appeal. See School Committee of Brockton v. Massachusetts Commission Against Discrimination, 423 Mass. 7, 15 (1996). In addition to her testimony, the claimant provided text messages from client A, which were admitted into evidence as Exhibits 19–21, in which client A confirmed she had not paid the claimant for styling her hair. As the employer bears the burden in this case and did not provide any firsthand information directly contradicting the claimant’s testimony, we believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. 

Although it was likely inadvisable for the claimant to take hairpins without the employer’s express permission, we form no opinion about whether the employer was justified in discharging the claimant. See Consolidated Finding 22. The issue before us “is whether the Legislature intended that certain unemployment benefits should be denied in the circumstances of a case such as this.” Goodridge v. Dir. of Division of Employment Security, 375 Mass. 434, 436 (1978). Because the review examiner found that the claimant was not paid for styling client A’s hair on September 6, 2025, the employer has not met its burden to show that the claimant engaged in the misconduct which caused her separation. Accordingly, the claimant is not denied benefits under G.L. c. 151A, § 25(e)(2). 

We, therefore, conclude as a matter of law that the employer did not establish that the claimant engaged in deliberate misconduct in wilful disregard of the employing unit’s interest or knowingly violated a reasonable and uniformly enforced rule or policy of the employer, as meant under G.L. c. 151A, § 25(e)(2). 

The review examiner’s decision is reversed. The claimant entitled to receive benefits for the week ending September 20, 2025, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – July 13, 2026

1. Exhibits 19–21, while not explicitly incorporated into the review examiner’s findings, are part of the unchallenged evidence introduced at the hearing and placed in the record, and they are 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). 

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.

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