Opinion
No. 719 C.D. 2012
04-02-2013
Loretta J. Zimmerman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Loretta J. Zimmerman (Claimant) petitions this court for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of the referee denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides in part that an employee shall be ineligible for benefits during any week "[i]n which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature."
Claimant was employed by the Institute for Caregiver Education (Employer) as a part-time private school coordinator from May 2008 until October 10, 2011. In September 2011, Employer offered Claimant a full-time position as an Admission Counselor, with substantially the same duties as her current position, at an annual salary of $24,000 plus 3% net sales commission. After Claimant raised questions about the offer with Employer that were not answered to her satisfaction, she resigned. Claimant's application for benefits was denied by the UC Service Center. She appealed, and a hearing was held before the referee. Claimant and Employer's witness, Annette M. Sanders, appeared and testified. The facts as found by the referee may be summarized as follows.
Claimant worked 3 days per week, or 24 hours per week, and was paid an annual salary of $35,000. Claimant's duties included visiting schools to promote Employer's programs, proctoring tests for potential students for entry into Employer's program, providing information to prospective students, as well as other duties regarding entrance and acceptance of students. Claimant frequently worked more than her designated hours to perform her duties.
Employer met with Claimant in September 2011 to offer her a new position as a full-time admission counselor, 5 days/40 hours per week, with a salary of $24,000 plus 3% net commission based on sales. Employer provided Claimant with a list of duties for her new position, which included many of the same duties she had been performing in her part-time position. Employer did not change its targeted marketing area, which was within a one-hour travel radius from its training site, nor did it change its practice of reimbursing employees for their mileage. Claimant was asked to accept or decline the offer by signing a letter she received at the meeting.
After speaking with Employer's president, Annette M. Sanders, a few days later to ask some questions about the offer, particularly with respect to the exact dollar amount she could expect from the commission, Claimant made a counter offer of working four rather than five days a week. While Ms. Sanders could not guarantee a specific amount of commission, she told Claimant that she expected Claimant would earn more than her prior salary if she met Employer's goal of recruiting twenty students for the December 2011 semester. Claimant was also told that the full-time hours were only temporary until the new semester began. Claimant again spoke with Employer about working only four days per week. When Employer did not accept her counter offer, Claimant refused to sign the letter and resigned.
The referee concluded that Claimant had not met her burden of proving a necessitous and compelling reason for leaving her employment. The referee stated:
Here, the employer wished to expand recruitment efforts in order to assure that the slots would be filled in the upcoming training session. The push was temporary. The claimant and employer agreed that the claimant worked additional hours as needed for recruitment. The claimant did not question whether the full-time hours would be permanent. The claimant did not inquire whether the targeted recruitment area would change or whether the reimbursement for travel was to be altered. The claimant wanted a definite dollar amount be provided to her on the income total. The employer repeatedly advised the claimant that with the current student population she would continue to earn at the same rate.
The claimant has not shown that the changes in the employment were unreasonable. In her capacity of private school coordinator, the claimant was aware or should have been aware that recruiting students was
mandatory for continuing the program. The full-time hours were to be during the push times. The claimant worked extra hours previously as needed to process the applicants for the start of the classes. The employer indicated the income to be similar to her prior income with steady recruitment numbers. The claimant has not sustained her burden in this case under Section 402(b) of the Law.Referee's Decision/Order dated December 30, 2011, at 3. The Board adopted and incorporated the referee's findings of facts and conclusions and affirmed the referee's decision. Claimant has now appealed to this court.
In order for a claimant to be eligible for unemployment compensation benefits upon his or her voluntary removal from work, the claimant must prove that she had cause of a necessitous and compelling nature to leave her employment. To meet that burden, a claimant must demonstrate circumstances which placed a real and substantial pressure upon her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. Unemployment Comp. Bd. of Review, 8 A.3d 1027 (Pa. Cmwlth. 2010). Mere dissatisfaction with her duties or salary will not in and of itself generally constitute necessitous and compelling reason to quit. Monaco v. Unemployment Comp. Bd. of Review, 523 Pa. 41, 48, 565 A.2d 127, 130 (1989). A claimant needs to prove that the working conditions or wages have substantially changed to the point that voluntary termination is necessary. Id. Whether or not a claimant has met her burden of establishing necessitous and compelling reasons for leaving her job is a question of law subject to our plenary review. Smithley.
In the matter sub judice, Claimant contends that she could not get a precise answer to her questions regarding her new job offer, particularly with respect to the actual dollar amount she would receive for her commission and that without any commission offered, she was actually being asked to take a 31% reduction in pay, from $35,000 a year to $24,000 a year. Claimant argues that numerous cases illustrate that a similar reduction in salary has been held to be sufficient evidence of good cause to voluntarily leave one's employment. Claimant cites A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299 (Pa. Cmwlth. 1995), which held that the claimant had necessitous and compelling reason to leave her job because employer failed to carry out its agreement to increase her wages and pay her childcare expenses, resulting in a 33.8% reduction in her wages. In Ship Inn, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 913 (Pa. Cmwlth. 1980), the claimant was able to establish a substantial reduction in pay after she was told by employer that she would no longer receive her extra pay for being a head waitress, which reduced her weekly salary of $67.80 by $15. Finally, Claimant notes that in Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 376 (Pa. Cmwlth. 1981), due to one of employer's companies going out of business, the claimant's net salary was reduced approximately $75 a week, nearly a 25% reduction in pay.
The Board counters that the offer was for a base salary of $24,000 plus a 3% commission on sales, dependent on the number of students enrolled in Employer's program. Employer contended that Claimant had the capacity to earn more than her prior salary of $35,000 per year under this new salary scheme. Furthermore, Claimant did not even attempt to work in her new position in order to ascertain how much her commission could potentially be, and if her salary would be actually reduced to the extent she asserts. The Board concluded that Claimant did not make an effort to maintain her employment relationship and thus did not meet her burden of proving a necessitous and compelling reason for leaving her job. We agree.
Necessitous and compelling cause results from circumstances which produce pressure to leave one's employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). Unilateral changes to the terms and conditions of employment, including changes in the employee's compensation arrangement, may constitute necessitous and compelling reason to voluntarily leave employment. Id. There is no exact percentage for determining whether a potential pay modification amounts to a substantial reduction in salary, although the court's focus is the impact such would have on the employee. Steinberg Vision Assoc. v. Unemployment Comp. Bd. of Review, 624 A.2d 237, 239-240 (Pa. Cmwlth. 1993). Each case must be considered on its own individual circumstances. Id.
Turning now to the matter sub judice, Claimant argues that she established that her salary was substantially reduced by 31%. She maintains that Employer could not provide her with an exact amount she could expect to make on commission and that therefore, she established a necessitous and compelling reason to leave her employment. However, mere speculation regarding the effect of a proposed change is not sufficient to establish a necessitous and compelling reason to quit, especially when the Claimant made no attempt to work under the new conditions before quitting. Monaco v. Unemployment Comp. Bd. of Review, 523 Pa. 41, 565 A.2d 127 (1989). In Monaco, the employee quit before the employer implemented a temporary shift from piece-work compensation to an hourly rate of pay while introducing new machinery. Our Supreme Court held that the employee did not prove that she actually suffered a substantial and unilateral change in income, in affirming the denial of benefits. 523 Pa. at 48-49, 565 A.2d at 131. Similarly, Claimant herein has not established that she actually suffered a substantial and unilateral change in income. The Board accepted Employer's testimony that if its goal of enrolling twenty students was met, Claimant would earn more than her prior $35,000 annual salary. That Employer could not give Claimant an exact figure because it was dependent on an unknown, i.e., the number of students who actually enrolled in its program, is not tantamount to proof of a substantial reduction in Claimant's salary. Moreover, the Board found that Claimant's duties under her new position were similar to her former duties and that while the hours and days did increase, she was told that the increased hours were "temporary" until the enrollment push ended in December.
Because Claimant never attempted the new position to determine whether her salary would actually decrease or whether the new hours were unreasonable, we conclude that Claimant failed to prove that the job modifications were unreasonable and rose to the level of circumstances which would compel a reasonable person to voluntarily terminate employment. Accordingly, we affirm the order of the Board.
Claimant testified that the new five day schedule would require her to find two additional days of childcare for her then-six year old son. However, she also admitted that her son was in a full-day kindergarten program and that she had not explored any childcare options. Employer's witness testified that even though the job offered to Claimant was for a 40 hour/5 day work week, it was a very flexible job, and that if an employee "needed to go do something with [her] kid at school" she was able to do that. Hearing of December 12, 2011, Notes of Testimony (N.T.) at 26. Claimant agreed with Employer that the work was being offered on a flexible schedule, and that they have "always had a flexible schedule . . . ." Id. at 29. Given the Board's finding that the hours would be full-time only during the seasonal recruitment period and Claimant's admission that she did not take steps to determine whether she could meet the schedule requirements, we similarly conclude that she has not demonstrated that the additional hours during the recruitment period created a burden so onerous as to force her to quit her job.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 2nd day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. Because the employment offer extended to Loretta J. Zimmerman (Claimant) by Institute for Caregiver Education (Employer) constituted a substantial change in both working conditions and wages, I would conclude that Claimant is not ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law) because she had a necessitous and compelling cause for voluntarily terminating her employment.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law provides that an employee shall be ineligible for benefits during any week "[i]n which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature . . . ." 43 P.S. §802(b).
From May 2008 until October 10, 2011, Claimant worked part-time for Employer, 3 days a week, 24 hours per week, as a private school coordinator. Employer paid Claimant an annual salary of $35,000. Claimant's duties included visiting schools to promote Employer's programs, recruiting students, and providing information to prospective students. (Findings of Fact, Nos. 1, 3.)
On September 26, 2011, Employer's newly appointed chairman, and its president met with Claimant and offered her a new position as a full-time admission counselor. The position required Claimant to work 5 days a week, 40 hours per week. The offer included a base salary of $24,000 plus 3% net commission based on sales. Employer provided Claimant a list of duties for the new position, many of which were similar to her duties as a private school coordinator. (Findings of Fact, Nos. 5, 7.)
On September 28, 2011, Claimant met with Employer seeking clarification on the terms of the offer, including the amount of expected commission. Employer could not determine or guarantee a specific amount of commission, but indicated that if classes were maintained with the same number of students, Claimant would receive more than her prior income. (Findings of Fact, Nos. 8, 9.)
To Claimant's understanding, the offer included more hours of work, with more responsibilities and a lower rate of pay. Claimant proposed to work four days per week, which Employer rejected. Claimant refused to accept Employer's offer and resigned. (Findings of Fact, Nos. 8, 14.)
The referee concluded that Claimant did not meet her burden of proving a necessitous and compelling reason for leaving her employment. On appeal, the UCBR adopted the referee's findings of facts and conclusions of law, and affirmed the referee. This petition for review followed.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
The claimant has the burden of proving that she had a necessitous and compelling cause to terminate her employment. Smithley v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1030 (Pa. Cmwlth. 2010). "'Necessitous and compelling cause' occurs under circumstances where there is a real and substantial pressure to terminate one's employment that would compel a reasonable person to do so." Id. Whether or not the claimant has met her burden is a question of law subject to this court's review. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1104 (Pa. Cmwlth. 2005).
A claimant is entitled to unemployment benefits "on the grounds that the wages or working conditions have substantially changed, to the point that voluntary termination is necessary." Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 48, 565 A.2d 127, 130 (1989). Here, Claimant's working conditions have substantially changed because the new position would require Claimant to work full-time rather than part-time. Additionally, Claimant's wages would substantially change because Claimant's guaranteed salary would decline and she would now work on commission.
In Livezey v. Unemployment Compensation Board of Review, 453 A.2d 739 (Pa. Cmwlth. 1982), this court observed that the claimant was hired on a part-time basis and that the claimant and employer agreed that the claimant would not work on Thursday afternoons and would have off every other Monday. Employer thereafter changed office procedures requiring the claimant to work Monday through Friday from 9:00 a.m. to 5:00 p.m. The claimant spoke to the employer about the new policy, but the employer reiterated his determination that she would have to work the new mandated hours. The claimant resigned.
This court affirmed the UCBR's grant of benefits. We stated that "the change in hours from part-time to full-time was a material alteration of the contract of hire, and that such action constitutes necessitous and compelling reason to leave." Id. at 741 (footnote omitted).
In addition to a substantial change in Claimant's working conditions, i.e., part-time to full-time, Claimant would also experience a substantial change in her compensation. Claimant's guaranteed wages would decrease from $35,000 to $24,000, a reduction of approximately 31%.
In A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302-03 (Pa. Cmwlth. 1995), this court determined that the employer's failure to increase the claimant's wages and pay for childcare as the parties had agreed to, resulted in a 33.8% wage reduction and constituted a necessitous and compelling reason for the claimant to leave her job. In Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 376, 377 (Pa. Cmwlth. 1981), this court determined that the claimant had a necessitous and compelling reason for leaving work where a $75-per-week reduction represented almost one fourth of her salary.
Although this case differs because Claimant could also earn commission, and, as the UCBR theorized, Claimant would still make the same amount of money or more under the plan, the fact remains that Claimant would be required to work 16 more hours per week in order to do so.
Moreover, I disagree with the majority that Claimant was required to try the new position. In Monaco, "the employees were merely protesting a possible change in the amount of pay they would receive under the former piece-work rate. This cannot be considered a 'necessary or compelling' reason because the effect is only speculative." 523 Pa. at 48, 565 A.2d at 131. Unlike Monaco, this case does not involve mere speculation of a proposed change. (See Majority Op. at 6.) Rather, Claimant would have to work an additional 16 hours per week to make the same amount of money that she did in her previous position. Claimant was working 24 hours per week; the new position required her to work 40 hours per week, representing an increase of over 66%. Moreover, the pay structure was altered such that Claimant's guaranteed pay would be reduced by 31%, and she would now work on commission.
I believe that Claimant met her burden of proving that the working conditions and pay substantially changed. Accordingly, I would reverse the decision of the UCBR.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge