Board of Review Decision 352-NF8H-MM4T

Claimant, who quit his full-time job because the employer’s proffered schedule change would interfere with his ability to rest for a part-time job, did not establish either urgent, compelling, and necessitous reasons or good cause attributable to the employer for doing so. Held the claimant is ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(1).

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Issue ID: 352-NF8H-MM4T

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 reverse.

The claimant separated from his position with the employer on or about July 16, 2025. He filed a claim for unemployment benefits with the DUA, effective July 6, 2025, which was denied in a determination issued on December 18, 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 January 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 good cause attributable to the employer and, thus, was entitled to benefits pursuant to G.L. c. 151A, § 25(e)(1). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the employer’s appeal, we afforded the parties an opportunity to submit written reasons for agreeing or disagreeing with the decision. Neither party 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 established good cause attributable to the employer for quitting his job because he believed the workplace was unsafe and because his modified schedule would not allow him to rest before the start of his shifts for a part-time employer, 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 full-time as a security officer for the employer from 10/25/23 through 7/16/25. 
2. When the claimant initially was hired, he worked at a public health facility. A shelter for homeless was on the site. There were often blood and needles on the ground.
3. The facility and the area were unsafe. 
4. The claimant was moved to a different work site a few weeks later. The new site was safe. 
5. He worked Wednesday-Sunday from 8 p.m. to 4 a.m. 
6. On Saturdays and Sundays, the claimant also worked a part-time job for a different employer from 8 a.m. to 4 p.m. He was a valet parking supervisor at a hospital.
7. On the weekends, the claimant typically went right to bed to rest between his two jobs.
8. The claimant advised the employer about his second job. 
9. On Sunday, 7/6/25, the claimant did not work his shift because he was sick. The claimant had a fever and body aches. 
10. The employer asked the claimant for medical documentation. 
11. On 7/8/25, the claimant went to an urgent medical care facility. He obtained a note that advised he would remain out of work until 7/16/25, and that he could return sooner if he felt better. 
12. The claimant emailed the note to the employer.
13. The claimant did not feel well enough to return to work for the employer until 7/16/25.
14. The claimant saw that all the other days he was scheduled to work prior to 7/16/25 were erased from the online schedule on the app. He saw that he was scheduled to work on 7/16/25. 
15. When the claimant arrived at his post, another employee was already working at the site. 
16. The claimant called the dispatcher. The dispatcher notified him that he had been removed from the schedule and that he could expect a call from the employer later. 
17. Days later, the claimant called the employer. The employer notified him that his assignment at his work site was no longer available.
18. The employer had subcontracted out the position at the claimant’s usual work site to another entity. 
19. The employer indicated that he could choose to work at a new location from 11 p.m. to 7 a.m. or at his previous (unsafe) worksite during the same hours. His pay would remain the same. The employer also told him that if he did not choose one of the jobs offered to him, he could resign and return his uniform. 
20. The claimant asked if there were any shifts from 8 p.m. to 4 a.m. because he would not have time to rest between his two jobs on the weekend if he took the jobs that began at 11 p.m. and went to 7 a.m. 
21. The employer indicated [sic] repeated his options. 
22. The claimant declined the options. 
23. On 7/18/25, the employer emailed the claimant confirming their earlier conversation and indicated that they believed he was not interested in the jobs available to him. They reiterated his work site was no longer available to him and that the only shifts they had available were from 11 p.m. to 7 a.m. either at his previous (unsafe) work site or at a new work site. 
24. Most of the employer’s business was scheduled during the overnight hours. 
25. On 7/21/25, the claimant emailed the employer and indicated that he wanted to maintain the same schedule that he had and that the change in his schedule and work location was unsettling. 
26. On 7/24/25, the employer sent the claimant an email indicating that his work site changed due to business needs and that they had other work sites in a similar location with the same pay available for him. They indicated they were doing their best to accommodate the situation. 
27. On 8/1/25, the employer emailed the claimant indicating that they received his voicemail and that they were reaching back out to inquire as to whether he was going to accept one of the job assignments offered to him. 
28. On 8/5/25, the employer emailed the claimant indicating that they tried to call and email him, but they did not receive a response. They asked him to return his uniform.
29. The employer considered the claimant to be a good employee. 
30. The claimant would have continued to work for the employer if his work hours/site remained the same. 
31. The claimant quit his job because the employer changed his work hours/site.

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 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.

Because the claimant voluntarily left his employment, his eligibility for benefits is properly analyzed under 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. . 

The express language in these statutory provisions assign the burden of proof to the claimant. In this case, we do not believe the claimant has met his burden.

The review examiner concluded that the claimant established good cause attributable to the employer for resigning for two reasons. First, because the employer moved the claimant’s worksite to a location he believed to be unsafe, or to another site. Second, because the employer changed his shift from one that began at 8:00 p.m. and ended at 4:00 a.m. to a shift that began at 11:00 p.m. and ended at 7:00 a.m., which would not leave enough time for the claimant to rest before beginning his shift at a part-time job with another employer, where he worked weekends from 8:00 a.m. until 4:00 p.m. See Findings of Fact 6 and 17–23. The question before us is whether the claimant has shown that this change in worksite and schedule made the work unsuitable. “Leaving employment because it is or becomes unsuitable is, under the case law, incorporated in the determination of ‘good cause.’ SeeGraves v. Dir. of Division of Employment Security, 384 Mass. 766, 768 n. 3 (1981).” Baker v. Dir. of Division of Unemployment Assistance, No. 12-P-1141, 2013 WL 3329009 (Mass. App. Ct. July 3, 2013), summary decision pursuant to rule 1:28. 

In Findings of Fact 2 and 3, the review examiner found that the first site to which the claimant had been assigned was a public health facility with a homeless shelter on site. There were often blood and needles on the ground, and the facility and area were unsafe. Thereafter, the claimant was assigned to another worksite with a schedule of 8:00 p.m. to 4:00 a.m. See Findings of Fact 4–5. He worked at this site until July 6, 2025, when he called out from work because he was sick. See Finding of Fact 9. When the claimant had recovered enough to work, he reported to his worksite on July 16, 2025, and saw another employee working at the site. See Findings of Fact 13–15. 

The employer had subcontracted to another entity the worksite where the claimant had worked until July 6, 2025, and that site was no longer available for him. See Findings of Fact 17–18. Instead, the employer offered the claimant work from 11:00 p.m. until 7:00 a.m. at either a new worksite or at the worksite to which he initially had been assigned, which he deemed to be unsafe. See Findings of Fact 19 and 23. The claimant requested another worksite that had a shift from 8:00 p.m. until 4:00 a.m., because the new schedule would not permit him to rest before he started his part-time weekend job and declined the employer’s offers. See Findings of Fact 20–22. While the parties corresponded back and forth between July 18 and August 5, 2025, the review examiner ultimately found that the claimant quit because the employer had changed his hours and worksite. See Findings of Fact 23–31.

While the review examiner credited the claimant’s testimony that he did not want to return to his initial worksite because he believed that it was unsafe, the review examiner also found that the employer offered the claimant shifts at other worksites at the same pay, but with a schedule from 11:00 p.m. to 7:00 a.m. Where the employer offered the claimant work at sites that were not known to be “unsafe,” we cannot conclude that the claimant’s reason for declining the offer was safety-based. Although this change in schedule may have been less convenient for the claimant in view of his other part-time job, nothing in the evidence suggests that the change in worksite would have been detrimental to the claimant’s health or safety. See Pacific Mills v. Dir. of Division of Employment Security, 322 Mass. 345, 349–350 (1948) (in determining the suitability of a job, many factors are to be considered, including whether the employment was detrimental to the health and safety of the employee). 

We next consider the question raised by the review examiner’s conclusion that the shift in schedule from 11:00 p.m. to 7:00 a.m. rendered the job unsuitable for the claimant because it interfered with his ability to maintain a second job. Even if the schedule shift rendered the claimant unable to work the part-time job, we are unaware of any legal authority that views preserving part-time employment as a compelling reason to leave full-time work. In fact, the Legislature places a priority on full-time employment. It expects that unemployed workers will only be eligible for benefits if they are unable to obtain full-time work. See G.L. c. 151A, §§ 1(r) and 29. Here, the claimant had full-time work but prioritized his part-time employment. It may have been a good personal choice, but it does not rise to good cause attributable to the employer to resign. See Conlon v. Dir. of Division of Employment Security, 382 Mass. 19, 23 (1980) (when a claimant contends that the separation was for good cause attributable to the employer, the focus is on the employer’s conduct and not on the employee’s personal reasons for leaving). 

“[A] ‘wide variety of personal circumstances’ have been recognized as constituting ‘urgent, compelling and necessitous’ reasons under G.L. c. 151A, § 25(e)(1), which may render involuntary a claimant’s departure from work.” Norfolk County Retirement System v. Dir. of Department of Labor and Workforce Development, 66 Mass. App. Ct. 759, 765 (2009), quoting Reep v. Comm’r of Department of Employment and Training, 412 Mass. 845, 847 (1992). Here, the claimant’s decision to leave this full-time job in order to be able to work his part-time job also does not constitute an urgent, compelling, and necessitous reason for resigning.

Further, even if we concluded that the claimant established good cause attributable to the employer or an urgent, compelling, and necessitous reason to leave, he still had an obligation to try to preserve his employment prior to quitting. SeeGuarino v. Dir. of Division of Employment Security, 393 Mass. 89, 93–94 (1984) (an employee who voluntarily leaves employment due to an employer’s action has the burden to show that she made a reasonable attempt to correct the situation or that such attempt would have been futile); and Norfolk County Retirement System, 66 Mass. App. Ct. at 766. Nothing in the record suggests that, at the time the claimant quit, he made any effort to try to work at an alternate site and see whether it was possible for him to continue working at his part-time job.

We, therefore, conclude as a matter of law that the claimant voluntarily left his employment without demonstrating that he did so for good cause attributable to the employer within the meaning of G.L. c. 151A, § 25(e)(1). 

The review examiner’s decision is reversed. The claimant is denied benefits for the week ending July 12, 2025, and for subsequent weeks, until such time as he has had at least eight weeks of work and has earned an amount equivalent to or in excess of eight times his weekly benefit amount.

Boston, Massachusetts                                              Date of Decision – June 12, 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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