Opinion
349078
07-01-2021
LEONARD WILSON, Claimant-Appellant, v. MEIJER GREAT LAKES LIMITED PARTNERSHIP and UNEMPLOYMENT INSURANCE AGENCY, Respondents-Appellees.
UNPUBLISHED
Ingham Circuit Court LC No. 18-000711-AE
Before: Jansen, P.J., and M. J. Kelly and Ronayne Krause, JJ.Per Curiam.
Claimant, Leonard Wilson, appeals by leave granted the trial court order affirming the Michigan Compensation Appellate Commission's (MCAC's) decision that claimant was not eligible for unemployment benefits because under MCL 421.29(1)(a)'s "no show, no call" provision he was considered to have voluntarily left employment. We affirm for the reasons stated in this opinion.
This Court initially denied claimant's application. Wilson v Meijer Great Lakes Ltd Partnership, unpublished order of the Court of Appeals, entered October 1, 2019 (Docket No. 349078). Claimant appealed to the Supreme Court, and that Court remanded to this Court "for consideration as on leave granted." Wilson v Meijer Great Lakes Ltd Partnership, 505 Mich. 1084 (2020).
I. BASIC FACTS
Claimant worked for Meijer Great Lakes Limited Partnership. Meijer requires "store team members," such as claimant, to call in any absences at least an hour before the start of a scheduled shift. Claimant did not appear for his scheduled shifts on five consecutive workdays (Monday, September 4, 2017, to Friday, September 8, 2017). Although he called in on September 5 to explain that he would not be in that day due to "unusual circumstances," he did not do so before his shift was scheduled to start. The "unusual circumstances" were that claimant had been arrested on a narcotic charge and was in jail. The record reflects that the September 5 call was a courtesy call. Claimant could not afford to make additional calls and his employer did not accept collect calls.
The record reflects that claimant was aware that Meijer had a policy of terminating employees after three consecutive days without coming to work or calling in. Further, Meijer's attendance policy required store team members to "provide notice [that the employee will be absent] no less than sixty (60) minutes prior to the shift start time." The policy also provided that "[a]ll team members should notify their leadership of an absence in accordance with the procedures specified by their work location." Because claimant was absent from work for three consecutive days without calling in, his employment was terminated after he did not appear for work on September 8, 2017.
Thereafter, claimant sought unemployment benefits, but was determined (and redetermined) to be ineligible. He appealed and a hearing was set before an administrative law judge (ALJ). In pertinent part, the ALJ determined that claimant was "disqualified from receiving benefits under the voluntary leaving provision, Section 29(1)(b) of the Act, beginning the week ending September 9, 2017." Claimant filed an appeal to the MCAC, which affirmed the ALJ's decision. The MCAC reasoned:
A claimant who was absent for three days without notice has, as a matter of law, voluntarily left employment. See Section 29(1)(a) of the Act. A claimant is disqualified for benefits if the claimant left work without good cause attributable to the employer. A claimant who left work is presumed to have voluntarily done so without good cause. See Section 29(1)(a) of the Act. Good cause exists when the circumstance which prompted the claimant's leaving would have caused a reasonable, average and otherwise qualified employee to leave. See Carswell v Share House, Inc[], 151 Mich.App. 392[; 390 N.W.2d 252] (1986).
The claimant's separation is considered a leaving as he was absent without notice for 3 days. The claimant was absent without notice because he had been arrested and was jailed. The claimant's arrested [sic] and incarceration were not attributable to the employer. Consequently, the claimant is disqualified from benefits under Section 29(1)(a) of the Act and the ALJ's decision will be affirmed.
Claimant appealed to the circuit court, which affirmed. Relevant to this appeal, the circuit court's interpretation of the third sentence of MCL 421.29(1)(a), the "no show, no call" provision, was consistent with the interpretation used by the ALJ and the MCAC.
Effective December 29, 2020, this section was amended. See 2020 PA 258. Relevant to this matter, the third sentence of MCL 421.29(1)(a) now reads, "An individual who is absent from work for a period of 3 consecutive work days or more without contacting the employer in a manner acceptable to the employer and of which the individual was informed at the time of hire is considered to have voluntarily left work without good cause attributable to the employer." MCL 421.29(1)(a) (emphasis added). As statutes and amendments to statutes are presumed to apply prospectively only absent a "clear, direct, and unequivocal expression" by the Legislature that an amendment apply retroactively, Davis v State Employees' Retirement Bd, 272 Mich.App. 151, 155-156; 725 N.W.2d 56 (2006), and the amendment to MCL 421.29(1)(a) contains no indication that it would apply retroactively, further references to MCL 421.29(1)(a) are to the version in effect before the 2020 amendment, unless stated otherwise.
II. STATUTORY INTERPRETATION
A. STANDARD OF REVIEW
Claimant argues that the court erred in its interpretation of MCL 421.29(1)(a). The proper interpretation of a statute is a question of law this Court reviews de novo on appeal. In re Complaint of Rovas Against SBC Mich, 482 Mich. 90, 102; 754 N.W.2d 259 (2008). "Thus, concepts such as 'abuse of discretion' or 'clear error,' which are similar to the standards of review applicable to other agency functions, simply do not apply to a court's review of an agency's construction of a statute." Id.
B. ANALYSIS
This case involves the proper interpretation of MCL 421.29(1)(a). "The primary goal of statutory interpretation is to give effect to the Legislature's intent." In re Reliability Plans of Electric Utilities for 2017-2021, 505 Mich. 97, 119; 949 N.W.2d 73 (2020). "Statutory interpretation begins with examining the plain language of the statute." Id. "When that language is clear and unambiguous, no further judicial construction is required or permitted." Id. "A statutory provision is ambiguous only if it conflicts irreconcilably with another provision or it is equally susceptible to more than one meaning." Mayor of Cadillac v Blackburn, 306 Mich.App. 512, 516; 857 N.W.2d 529 (2014). "A statute is not ambiguous merely because a term it contains is undefined or has multiple definitions in a dictionary, especially when the term is read in context." Id. "When construing a statute, we must assign every word or phrase its plain and ordinary meaning unless the Legislature has provided specific definitions or has used technical terms that have acquired a peculiar and appropriate meaning in the law." Id.
At all times relevant to this appeal, MCL 421.29(1)(a) provided:
(1) Except as provided in subsection (5), an individual is disqualified from receiving benefits if he or she:
(a) Left work voluntarily without good cause attributable to the employer or employing unit. An individual who left work is presumed to have left work voluntarily without good cause attributable to the employer or employing unit. An individual who is absent from work for a period of 3 consecutive work days or more without contacting the employer in a manner acceptable to the employer and of which the individual was informed at the time of hire shall be considered to have voluntarily left work without good cause attributable to the employer. An individual who becomes unemployed as a result of negligently losing a requirement for the job of which he or she was informed at the time of hire shall be considered to have voluntarily left work without good cause attributable to the employer. An individual claiming benefits under this act has the burden of proof to establish that he or she left work involuntarily or for good cause that was attributable to the employer or employing unit. An individual claiming to have left work involuntarily for medical reasons must have done all of the following before the leaving: secured a statement from a medical professional that continuing in the individual's current job would be harmful to the individual's physical or mental health; unsuccessfully attempted to secure alternative work with the employer; and unsuccessfully attempted to be placed on a leave of absence with the employer to last until the individual's mental or physical health would no longer be harmed by the current job. . . . [emphasis added.]
Claimant argues that the third sentence of MCL 421.29(1)(a) is ambiguous. We disagree. The word "shall" indicates a mandatory directive. Browder v Int'l Fidelity Ins Co, 413 Mich. 603, 612; 321 N.W.2d 668 (1982). In turn, "consider" is a transitive verb with a number of definitions. Merriam-Webster's Collegiate Dictionary (11th ed). To "consider" something can mean to "think about carefully," "to regard or treat in an attentive or kindly way," or "to gaze on steadily or reflectively." Id. Those definitions all contemplate thoughtfulness, or "consideration of," a subject. But another definition of the word "consider" is "to come to judge or classify." Id.
Based on the phrase "shall be considered," it is clear that it is the last definition that was intended by the legislature. Thus, if the statutory prerequisites are met, the person must be judged or classified as a person who voluntarily left work without good cause attributable to his or her employer. Any other construction would render meaningless the phrase, "shall be." Further, the Legislature did not state in the "no call, no show" provision that anyone should undertake any consideration—i.e., contemplative thought—of the circumstances. Rather, the Legislature used the word, "considered." Particularly when coupled with the phrase, "shall be," it is clear that the Legislature did not intend for any consideration of the underlying facts and circumstances causing an employee to fail to appear for work for three or more consecutive workdays without contacting their employer. Rather, the "no show, no call" provision of MCL 421.29(1)(a) is, in essence, a definition of one instance where an individual is, as a matter of law, deemed to have voluntarily left work without good cause.
Moreover, provisions must be read in the context of the entire statute so as to produce a harmonious whole. Macomb Co Prosecuting Attorney v Murphy, 464 Mich. 149, 159; 627 N.W.2d 247 (2001). Identical language in various provisions of the same act should be construed identically. The Cadle Co v Kentwood, 285 Mich.App. 240, 249; 776 N.W.2d 145 (2009). Here in addition to the "no call, no show" provision in MCL 421.29(1)(a), the Legislature included another circumstance in which an individual "shall be considered" to have voluntarily left work. Specifically, the fourth sentence of MCL 421.29(1)(a) provides, "An individual who becomes unemployed as a result of negligently losing a requirement for the job of which he or she was informed at the time of hire shall be considered to have voluntarily left work without good cause attributable to the employer." MCL 421.29(1)(a). Clearly, one who has lost a job due to negligence has not done so in what could be described as a truly "voluntary" manner. Claimant's desired interpretation of the "no show, no call" provision would require consideration of the underlying facts and circumstances, and ultimately, a decision whether the individual voluntarily chose to fail to appear for work without contacting his or her employer. Doing so with regard to the "no show, no call" provision would seem to mean that in the later sentence concerning the loss of a job requirement, which uses the same operative language ("shall be considered"), the same analysis should be used. But doing so would be impossible. One cannot both negligently lose a job requirement and intentionally—i.e., "voluntarily," lose that same requirement. The obvious answer to this predicament is that the Legislature has deemed certain circumstances equivalent to "voluntarily" leaving work without good cause, even if those circumstances are not actually voluntary.
Claimant attempts to avoid this result by first claiming that the applicable test for determining if one has voluntarily left work was established in 1961 by Lyons v Appeal Bd of Mich. Employment Security Comm, 363 Mich. 201, 216; 108 N.W.2d 849 (1961). In that case, the Supreme Court interpreted what it meant for one's leaving of employment to be "voluntary." Id. at 203-204. The Court was only asked to interpret a provision stating that an individual was disqualified from receiving unemployment benefits if he or she left work voluntarily without good cause attributable to the employer or employing unit. Id. at 206-207. In other words, Lyons involved what is currently the first sentence of MCL 421.29(1)(a). The Legislature has now statutorily defined a circumstance that amounts to voluntarily leaving work without good cause attributable to the employer or employing unit—being a "no show, no call" for three consecutive workdays. MCL 421.29(1)(a). Lyons is not controlling as it did not interpret or apply the statutory language that is at issue in this appeal. Nor could it, given that the applicable statutory language was added to MCL 421.29(1)(a) in 2011—fifty years after Lyons was decided. See 2011 PA 269.
Claimant next turns to Warren v Caro Comm Hosp, 457 Mich. 361; 579 N.W.2d 343 (1998). That case, too, was decided before the relevant statutory language was added to MCL 421.29(1)(a). Warren was, like Lyons, a case that turned on the more general question of whether an individual left work voluntarily. The Court held that the question was a two-part inquiry: first, one must ask if the individual left work voluntarily, which depends on the facts and circumstances of the individual case; and second, one must ask if the individual left without good cause attributable to the employer. Warren, 457 Mich. at 366-367. That inquiry, however, is not relevant to this case. Since Warren was decided, the Legislature has created a set of circumstances that, as a matter of law, amounts to leaving work voluntarily without good cause attributable to the employer. Those set of circumstances exist in this case, so there is no need to conduct the analysis stated in Warren.
Next, claimant argues that his case is similar to Tomei v Gen Motors Corp, 194 Mich.App. 180; 486 N.W.2d 100 (1992). But that case also predates the enactment of the statutory language that controls the outcome in the present matter. And, like Lyons and Warren, Tomei asked whether an individual's leaving of employment was truly voluntary. Tomei, 194 Mich.App. at 184-188. In the present case, the question of whether claimant left work voluntarily and without good cause attributable to his employer is governed by the third sentence of MCL 421.29(1)(a). Tomei is thus of no relevance.
Claimant also contends that a "strict" construction of MCL 421.29(1)(a) runs counter to the plain language of the statute. However, it is claimant's attempt to rewrite clear and unambiguous statutory language that is improper. In the second sentence of MCL 421.29(1)(a), the Legislature created a presumption that, by leaving work, one has left work voluntarily and without good cause attributable to the employer. Claimant relies on that sentence to argue that this same presumption should apply to the third sentence of MCL 421.29(1)(a). But the statutory language is clear: simply leaving work creates a presumption that may be rebutted, but failing to come to work for three consecutive workdays, and without contacting the employer in a manner acceptable to the employer, means that, as a matter of law, the individual has left work voluntarily. There is no mention of a "presumption" in the third sentence of MCL 421.29(1)(a); rather, this sentence states that the individual shall be considered to have left work voluntarily and without good cause attributable to the employer. There is no room for presumptions when it comes to the circumstances described by the third sentence of MCL 421.29(1)(a).
Claimant argues that the addition of the "no show, no call" provision merely "reclassified what would have been a misconduct case" under MCL 421.29(1)(b), "where the burden is on the employer to prove misconduct—into a voluntary quit case, where the claimant now bears the burden to rebut the voluntary quit provision." Therefore, according to claimant, the Legislature's purpose was simply to shift the burden from the employer to the claimant, not to create a situation where, as a matter of law, the individual is disqualified from receiving benefits. That, however, ignores the plain language of the statute, which clearly and unequivocally says that, where certain circumstances exist, the individual shall be considered to have voluntarily left work without good cause attributable to the employer. MCL 421.29(1)(a). Where statutory language is clear and unambiguous, this Court's task in construing the statute begins and ends with that plain language. Scugoza v Metropolitan Direct Prop & Cas Ins Co, 316 Mich.App. 218, 223; 891 N.W.2d 274 (2016).
Moreover, the "misconduct" provision of MCL 421.29(1)(b) did not have any specific language addressing individuals who do not show up for work and do not call in an absence prior to the enactment of 2011 PA 269. See, e.g., MCL 421.29(1)(b), as enacted by 2008 PA 480. Rather, the "no call, no show" provision of MCL 421.29(1)(a) was a new provision added in 2011, via 2011 PA 269, that did not previously exist anywhere in the Act.
Claimant argues that a "strict liability" analysis is not appropriate. The ALJ could have used a different phrase than "strict liability." Indeed, this is not a strict-liability case; claimant bears no "liability" at all. Rather, what is at issue is whether claimant is disqualified from unemployment benefits. But wording aside, the ALJ's intent is clear: where certain circumstances exist, the result is controlled by the statute and follows as a matter of law, without regard to why those circumstances came to be. While one might disagree whether that is good policy, the fact of the matter is that the ALJ's construction of the statute is consistent with the plain language used by the Legislature. Whether one chooses to call that "strict liability" or something else is irrelevant.
Claimant notes that the overall purpose of the Act is to provide financial assistance to those who become unemployed, MCL 421.2(1), and that, viewed in that lens, MCL 421.29(1)(a) should not be read as creating any absolute bars to benefits. Claimant also correctly notes that, because the Act is a remedial statute, "it should be liberally construed to achieve its intended goal." Empire Iron Mining Partnership v Orhanen, 455 Mich. 410, 417; 565 N.W.2d 844 (1997). But those general principles cannot change what the Legislature has stated with clarity in MCL 421.29(1)(a): those who fail to come to work for three consecutive workdays, and have not contacted their employer in a manner acceptable to the employer, cannot receive unemployment benefits. Although the Act's overall purpose is to provide monetary assistance to those who have lost their employment, there are circumstances in which one may lose their employment and also not be entitled to unemployment benefits. The Legislature has created exceptions where, despite the general purpose of the Act, unemployment benefits are simply not available. Empire Iron Mining Partnership, 455 Mich. at 417-418. This case is one of those exceptions.
Claimant also resorts to cases from other jurisdictions regarding those states' own "no call, no show" statutory provisions. But claimant fails to explain whether, in any of those states, the applicable statutory language is the same or similar to that contained in MCL 421.29(1)(a). Without that crucial link, claimant has not proven anything. And in any event, judicial opinions from other jurisdictions would be, at most, persuasive authority. See Hiner v Mojica, 271 Mich.App. 604, 612; 722 N.W.2d 914 (2006).
III. CONCLUSION
In sum, the plain meaning of MCL 421.29(1)(a) disqualifies claimant from receiving unemployment benefits. While one can debate whether that is sound public policy, it is the law, and this Court cannot judicially rewrite the statute to conform to what some might wish for the statute to say. "It is not within the authority of the judiciary to redetermine the Legislature's choice or to independently assess what would be most fair or just or best public policy." Lash v City of Traverse City, 479 Mich. 180, 197; 735 N.W.2d 628 (2007) (quotation marks and citation omitted).
Affirmed.
Ronayne Krause, J. (dissenting)
I respectfully dissent. I believe that when MCL 421.29(1)(a) is read in context, it reflects a Legislative intent to base disqualification for unemployment benefits on acts or omissions that were actually within the claimant's control. I therefore conclude that the MCAC erred in disqualifying claimant for benefits on the basis of MCL 421.29(1)(a)'s "no show, no call" provision.
I need not repeat the facts, most of which are thoroughly set forth by the majority. I add only that the ALJ discussed whether claimant could have made better efforts to acquire the funds necessary to call Meijer and comply with Meijer's leave policy. The ALJ opined that it was "possible," albeit "very difficult," that claimant could have acquired the funds, but never indicated that success was likely. Rather, the ALJ and the MCAC relied on treating MCL 421.29(1)(a) as setting forth an essentially "strict liability" test. I conclude that such a test contravenes the Legislature's intent.
The goal of statutory interpretation is to discern and give effect to the Legislature's intent, which begins by examining the language of the statute and applying plain and unambiguous language as written. In re Reliability Plans of Electric Utilities for 2017-2021, 505 Mich. 97, 119; 949 N.W.2d 73 (2020). However, in examining and considering the language of the statute, the statute must be read as a whole, and the language must be considered in the context of the entire statutory scheme. Madugula v Taub, 496 Mich. 685, 81; 853 N.W.2d 75 (2014); Honigman Miller Schwartz and Cohn LLP v City of Detroit, 505 Mich. 284, 305-307; 952 N.W.2d 358 (2020). The courts may not simply cite "context" without further explication as an excuse to depart from the plain language of a statute, unless the language of the statute reflects some internal inconsistency. See People v McIntire, 461 Mich. 147, 156 n 9; 599 N.W.2d 102 (1999). Nevertheless, to the extent any judicial construction of a statute is warranted, the courts should, to the extent possible, strive to avoid results that are absurd, unjust, or prejudicial to the public interest. See Rafferty v Markovitz, 461 Mich. 265, 270; 602 N.W.2d 367 (1999). Even unambiguous language may be properly understood only by considering its context. Tyler v Livonia Pub Schs, 459 Mich. 382, 390-392; 590 N.W.2d 560 (1999).
As the majority explains, at all times relevant to this appeal, MCL 421.29(1)(a) provided:
(1) Except as provided in subsection (5), an individual is disqualified from receiving benefits if he or she:
(a) Left work voluntarily without good cause attributable to the employer or employing unit. An individual who left work is presumed to have left work voluntarily without good cause attributable to the employer or employing unit. An individual who is absent from work for a period of 3 consecutive work days or more without contacting the employer in a manner acceptable to the employer and of which the individual was informed at the time of hire shall be considered to have voluntarily left work without good cause attributable to the employer. An individual who becomes unemployed as a result of negligently losing a requirement for the job of which he or she was informed at the time of hire shall be considered to have voluntarily left work without good cause attributable to the employer. An individual claiming benefits under this act has the burden of proof to establish that he or she left work involuntarily or for good cause that was attributable to the employer or employing unit. An individual claiming to have left work involuntarily for medical reasons must have done all of the following before the leaving: secured a statement from a medical professional that continuing in the individual's current job would be harmful to the individual's physical or mental health; unsuccessfully attempted to secure alternative work with the employer; and unsuccessfully attempted to be placed on a leave of absence with the employer to last until the individual's mental or physical health would no longer be harmed by the current job. . . .
The majority analyzes the meaning of the phrase "shall be considered" in the third sentence of MCL 421.29(1)(a). In complete isolation, the majority's construction of that phrase is reasonable. However, although the majority recognizes that the clause must be considered in its wider statutory context, I respectfully disagree with the majority's attempts to do so.
MCL 421.2(1) states that the public policy of the state is to provide assistance to people who are involuntarily unemployed. MCL 421.8 states, in its first sentence, "A basic purpose of this act is to lighten the burden of involuntary unemployment on the unemployed worker and his family." Despite the clear importance of unemployment being involuntary, nowhere in the Employment Security Act, MCL 421.1 et seq, is the word "voluntary" or "involuntary" defined. According to Merriam-Webster's Collegiate Dictionary (11th ed), "involuntary" means "done contrary to or without choice" or "not subject to control of the will." Consistent with this definition, our Supreme Court has held "involuntariness" within the meaning of the Employment Security Act to indicate the absence of realistically available reasonable alternatives, or the external imposition of constraints, irrespective of whether those constraints are a consequence of a voluntary act. Lyons v Appeal Bd of Mich. Employment Security Comm, 363 Mich. 201, 216; 108 N.W.2d 849 (1961); Warren v Caro Comm Hosp, 457 Mich. 361, 365-369; 579 N.W.2d 343 (1998). This is further consistent with the fact that even true strict-liability crimes generally require the defendant to have an actual ability to act or to refrain from acting. People v Likine, 492 Mich. 367, 392-398; 823 N.W.2d 50 (2012).
It would violate the explicitly stated Legislative intent and public policy underlying the act to construe "consider," for purposes of MCL 421.29(1)(a), as creating a disqualification based solely on whether an event occurred without taking into account whether the claimant is at fault. Such a construction is also inconsistent with the remainder of the statute, even in isolation. The fifth sentence states that the claimant "has the burden of proof to establish that he or she left work involuntarily or for good cause that was attributable to the employer or employing unit." Consistent with the understanding of what it means to be "involuntary" everywhere else in the Act, this sentence indicates that claimants are entitled to show that their departure from work was not under their actual control. The majority cites the fourth sentence, which refers to "negligently losing a requirement for the job." However, the concept of negligence is based upon a person acting (or failing to act) with some degree of volition and control. See Soule v Grimshaw, 266 Mich. 117, 119-120; 253 N.W. 237 (1934); see also Zeni v Anderson, 397 Mich. 117, 136; 243 N.W.2d 270 (1976) ("[l]iability without fault is not truly negligence").
As the majority observes, it is not the role of the courts to craft public policies and interfere with the Legislature's decisions. Lash v City of Traverse City, 479 Mich. 180, 197; 735 N.W.2d 628 (2007). However, the Legislature has explicitly set forth an applicable public policy here. I would conclude that if the Legislature truly intended to create a strict liability bar to a claimant being permitted to verify that an absence from work was actually involuntary, contrary to its expressly stated intent underlying the Employment Security Act, it would need to do so unambiguously, and the third sentence of MCL 421.29(1)(a) is not so unambiguous. When read in context, I would conclude that it establishes a presumption, but not an insurmountable presumption. The fact that claimant used his one available courtesy call to contact Meijer, even if he failed to reach the correct person, is powerful evidence that claimant's absence from his work was not actually voluntary. I would hold that the MCAC and the trial court erred in treating as irrelevant whether claimant could have contacted Meijer pursuant to Meijer's policies.