*1 issue, on the there no a conclusive determination Without controversy to appeal. dismissed.
Appeal
[58 222] No. 11-293 Dooley, Robinson, Reiber, C.J., Skoglund, Burgess JJ. Present: Opinion August Filed *2 Schoonover, K. Aid, Kirstin Legal Burlington, Vermont for Plaintiff-Appellee.
Amy M. McLaughlin Dinse, R. Angela Knapp Clark & McAndrew, RC, Burlington, for Defendant-Appellant.
¶ Dooley, (FAHC) J. Fletcher Alen Health appeals Care a decision of the Employment Security Vermont Board finding claimant, Mohamed, Abdullahi eligible unemployment for compen- sation benefits. The Board found that claimant’s discharge for criminal off-duty conduct did not constitute him disqualifying from unemployment compensation benefits under 21 V.S.A. On appeal, argues FAHC Legislature’s recent amendments to the Unemployment Vermont Compensation Act require the Board to claimants disqualify from receiving unemployment compensation benefits when an employer can no retain them longer as a result of off-duty criminal conduct. error, Finding no we affirm.
¶ 2. in employed Claimant was the environmental services department at the FAHC for hospital approximately years. four He responsible for cleaning certain work areas hospital. His work responsibilities put him in contact patients with two counts of guilty he September pled
and staff. a woman’s being groping young charged after lewdness clothing of V.S.A. over her violation vaginal area breasts 2632(a)(8). rise criminal gave to claimant’s The conduct and he was off take FAHC’s place property, on charges did officer later informed FAHC parole time. Claimant’s duty at the convictions, and on FAHC criminal October “criminal conviction employment claimant’s because his terminated for Both employment.” unsuitable continued [him] render[ed] discharged of his criminal that claimant was because parties agree convictions, place for took any at premises or that involved his work FAHC. unemployment claimant he was filed discharged, 3. After discharge impli- circumstances of his benefits. The
compensation different, related, disqualification provi- statutory cated three from provisions disqualify employee Two of the former sions. a period receiving unemployment compensation benefits time, disquali- after the allowing employee to obtain benefits disqualifies provision completely fication The third relevant period. any until after the employee receiving former benefits a certain amount of has returned to work earned employee *3 essence, employee the type provision prevents this money. any the receiving during unemployment following from benefits disqualification imposed. for which is the conduct the ¶ the if disqualification provisions applies 4. The first of partial “misconduct with his or employee discharged the for connected 1344(a)(1)(A). if § The the applies her work.” V.S.A. second from of the conse- separated employment “because employee felony quences flow his or her conviction of which from 1344(a)(1)(B). § The Id. complete misdemeanor.” misconduct employee discharged “gross if the occurs 1344(a)(2)(B). § his or Id. connected with her work.” Department Adjudicator 5. The of Labor Claims determined benefits, began receiving claimant was and he eligible that to appealed the week 2010. FAHC ending benefits October (ALJ) argued Law that claimant should Judge Administrative was fired for receiving from benefits because he disqualified be 8, 2010, gross On the ALJ issued a misconduct. December modifying Department’s finding determination decision actions, the course of his although that outside of “[claimant’s] directly ability . . . the retain impacted employer’s employment, Accordingly, his services.” the ALJ determined that a disqualifi- cation should be on claimant under period imposed simple 1344(a)(1)(A). provision Act, misconduct of the FAHC Board, was not this satisfied with result and appealed that arguing completely disqualified claimant should be from Act, benefits under the receiving gross provision misconduct 21 V.S.A.
¶ 6. The that Board found ALJ had erred failing proper notice all provide prior hearing to the issues. The case was remanded to the ALJ with instructions to hold another notice, hearing, proper addressing only simple provision, separation misconduct misconduct provisions as well. After a second ALJ concluded hearing, the there was “no direct connection” between claimant’s convictions job and his and therefore the misconduct provision was find, however, The ALJ did inapplicable. discharge claimant’s was a consequence” “foreseeable his criminal convictions and again applied simple provision Again, the Act.1 appealed Board, that, arguing to the in light of recent Act, amendments to had ALJ not properly interpreted the of gross definition misconduct. decision, 7. The Board affirmed the ALJ it stating that could act,
not “consider an duty off criminal not committed on the employer’s premises, nor in other any way the em- implicating ployer, being directly as perfor- related the claimant’s work mance.” FAHC a timely appeal Court, filed with this and it to argue continues off-duty claimant’s criminal conduct dis- qualifies him receiving unemployment compensation benefits pursuant the gross provision of the Act. matter, 8. As an initial claimant has moved to dismiss appeal grounds that case “A is moot. case becomes moot when the parties legally cognizable cease to maintain a in the interest outcome of the case.” v. Dep’t Emp’t Holton & ¶42, 14, Training, VT 1051. FAHC’s monetary because, interest in this case has ceased as a noncon- *4 ¶ infra, 19, fully 1As regarding simple discussed more the ALJ’s decision provision appeal, express judgment on is not and we no on whether it ¶ 21, Contrary implication, post, was correct. opinion to the dissent’s our should in way interpreted endorsing no reading simple be as the ALJ’s of provision. 208 appeal. on funds denied it cannot recover employer,
tributing we held rule as general under the is moot this case Accordingly, ¶ to the exception recognized have 15. But we Id. in Holton. yet evad[e] of repetition, “‘capable that are rule cases ” (1982) 148, 281, 149 278, S.H., 141 re Vt. In review.’ (1973)). 113, adopted We have Wade, 125 410 U.S. Roe v. (quoting “ ‘(1) challenged action exception: for this test two-pronged a to its prior fully litigated to be too short in its duration [must be] (2) a reasonable be] there [must expiration, cessation subjected to be party [will] complaining that the same expectation ” 469, 465, Tallman, 537 v. State again.’ action the same 147, (1987) U.S. Bradford, v. 423 422, (quoting 424 Weinstein A.2d (1975)). compensation unemployment exceptions, some 9. With twenty-six payments. weeks not exceed do generally benefits can extend process nature of the administrative § 1340. The beyond compensation disputes unemployment litigation case, not able to In FAHC was of benefits. final distribution had after claimant until several months to this Court appeal Board’s action Accordingly, the payment. his last benefits received properly it could ceased before challenges appeal on that FAHC FAHC will addition, expect it is reasonable challenged. be crime, and, as a of a convicted discharge employees continue compensa result, subject unemployment it will continue to be discharges. from such arising payments tion held that in Holton we circumstance 10. In a similar decision [on the “Board apply did not because exception mootness reasonably of facts that are on a set specific is based appeal] ¶42, Here, dealing Holton, 17. we are 2005 VT to recur.” likely factual the most basic only law on which question reasons, find that we both For these are relevant. elements met, and we proceed test are exception mootness prongs however, Schaefer, v. caution, as we did State the merits. We (1991), general questions Vt. but once such exception, meet are here present of law as more answered, in future cases become the issues are questions exception. fit likely within and are less specific fact is focused on appeal on light, In this our review of law will conclusions agency’s administrative of law. “An question reasonably supported fairly if they appeal be upheld
209 fact, by findings contrary, of and absent a clear to the showing correct, makes any expertise presumed decisions it within its are valid Co. v. Dep’t and reasonable.” Caledonian Record Publ’g of 260, 678, (1989) 256, Emp’t Training, & 151 Vt. 559 A.2d 681 (citation omitted). challenged FAHC has not the factual findings and, had, even if it this appeal2 “Court will not disturb the findings Employment Security they of the Board unless clearly Dep’t the evidence.” Johnson v. unsupported Emp’t of Sec., 554, 555, (1980). 106, 420 A.2d 107 “Where miscon- duct disqualification as basis for unemployment asserted benefits, compensation of proof employer.” the burden is on the Longe Sec., 460, 461, 76, v. Vt. Dep’t Emp’t 135 380 A.2d 77-78 of (1977).
¶ 12. FAHC emphasizes, Legislature As has recently amended the gross misconduct in the Act. Prior to amendment, the statute required disqualification if individual was “discharged by his or last unit employing gross her misconduct connected with his or 21 her work.” V.S.A. 1344(a)(2)(B) (2009). § We construed this to mean language that an employee’s must disregard conduct “be substantial interest, employer’s his disregard being either willful or culpably negligent.” Favreau v. Dep’t Emp’t 170, & 151 Training, Vt. (1989). The new amendment does not modify existing statutory language, but it the following adds definition of gross misconduct: section,
For purposes “gross misconduct” means directly conduct related to the employee’s perfor- work mance that flagrant, wanton, demonstrates a and inten- tional interest, disregard employer’s business and that has significant impact direct and upon employ- interest, er’s including theft, business not limited fraud, intoxication, intentional serious damage prop- erty, intentional infliction of personal injury, any conduct that constitutes felony, repeated or incidents after warning written of either unprovoked insubordination public profanity. use of argument required The dissent’s and ALJ’s Board’s decisions further findings by FAHC,
factual not raised and we see no for the need ease to be findings. remanded for further (codified Sess.), § 7 at (Adj. No. 124 1344(a)(2)(B)). simple note that
§ both We require employee’s law that an provisions work.” Y.S.A. employee’s] be “connected with [the (a)(2)(B). 1344(a)(1)(A), requirement, Legis- general To that if it is only “directly related lature added that misconduct We Id. employee’s performance.” — ALJ the Board conclude the decisions unrelated conduct was off-duty, off-premises, claimant’s directly at and was related connected his work — Accordingly, we performance were not unreasonable. his work *6 the gross pro- affirm the determination that misconduct Board’s apply of the Act in this case. vision does today previous with at least two 13. Our decision accords off-duty is not cases in which we have ruled that criminal conduct the Act. The most case is gross important misconduct under we v. in which Department Employment Security, Chamberlin of job an his longer perform found that who could no employee subject to discharge-for- because he was incarcerated was not the 140, 571, 572, gross-misconduct disqualification. 136 Vt. 396 curiam). (1978) in that (per plaintiff charged 140 The case was breaking entering, which was not associated with conduct employment with his as a laborer for a tree service. Id. He was months’ imprisonment, “employ- later sentenced to three and his by was reason of his incarceration.” Id. We held ment terminated disqualification provision apply that the did not on “not the action was based Department’s because 573, 141; connected with his work.” Id. at 396 A.2d at see also 355, 421, Sec., 357, Emp’t Przekaza v. Dep’t of (1978) (same). language 422 We note that under which decided, disqualification for miscon- authorizing Chamberlin work,” essentially language duct “connected with his is of current statute.3 in relevant another particularly respect. Chamberlin 1974, long-standing disqualification
Prior the statute had a were “for the provision applicable discharged claimants who felony after the guilty reason of been found of committed having his of his whether connected with previous employment time last 1949, 132, § specifically or not.” No. 1. We noted 3 only gender The difference is that current statute inclusive.
211 that a 1974 Chamberlin amendment the statute eliminated this disqualification provision and stated that it would be “especially of light disquali- the amendment to remove this inappropriate” that an employee disqualified fication hold could be under the provision felony for “a committed after the time of previous employment, whether connected with the employment Chamberlin, 141; not.” Vt. at 396 A.2d at see No. Sess.), (Adj. § (amending V.S.A. 1344 to eliminate the Thus, felony conviction disqualification). we declined to disqualify Legislature claimant where the had its expressed contrary intent. Id. FAHC is us to do asking exactly here what we refused to do in Chamberlin. decided, 15. Since Chamberlin and Przekaza were Legis-
lature has added disqualification provision who employees from separated employment they because cannot perform their as a of job result of a criminal consequences conviction. (added 1344(a)(1)(B) 13). 86, § No. This amend- ment created a again provision some employees crimes, convicted but a very different one that in effect — In a prior is, to 1974. limited respect where consequences a criminal conviction ability interfere — employee perform job his or her new disqualification modified holding Chamberlin. all other respects, intact, holding Chamberlin has remained and there has been no legislative it, other action to overrule at least until the 2010 amendment which FAHC relies. Unless the 2010 amendment *7 effect, had that governs Chamberlin this case.
¶ 16. FAHC that argues the 2010 to amendments the Act were enacted a legislative claimants, intent to disqualify more and that the Legislature since full disqualification provi- amended the sion, it must expand scope have intended to its to overrule To support Chamberlin. this position, points FAHC to title of the — the Act “An Act Relating Restoring to the Solvency — Unemployment Trust Fund” as well as specific several amend- that ments demonstrate the Legislature’s intent to rein in the cost unemployment 2009, the compensation program. See No. 124 Sess.), § (Adj. (adding 1340(b)); § § 5 21 V.S.A. 7 21 (amending id. 1344(a)(1)). § V.S.A. For the example, Legislature increased the partial disqualification period weeks, from twelve to fifteen saving the Trust Fund three weeks worth of for benefits claimants partially disqualified. Id. 7. FAHC argues that this other 212 the definition necessarily that amended imply provisions
similar disqualify employees also meant more misconduct was gross the and further reduce compensation benefits unemployment program. cost of the overall regarding correct the may be While amendments, necessarily not purpose of the
purpose amendment, amend into the every specifically carried into gross misconduct. to the full disqualification provision ment Thus, are statutory applicable normal methods of construction our intent, begin plain we with the determining legislative “In here. 88, LeBlanc, 171 v. Vt. meaning statutory language.” State (2000). 91, 991, must that all presume A.2d “This Court advisedly, plain in a was drafted and that the language statute the used was intended.” Comm. ordinary meaning language House, Inc., 137 Hosp. of Vt., Inc. v. Med. Bishop’s Ctr. Save (1979) (citations omitted) 1015, 142, 153, (citing Vt. (1974)). Racine, v. 653-54 State full language of the new plain 18. The still that misconduct be connected with provision requires work, that nothing language suggests its employee’s to overrule circumstances Legislature intended Chamberlin consequences-of-conviction partial disqualification. covered only if the provision imposed disqualification The old employee’s] This misconduct was “connected with work.” [an Chamberlin, which the basis not amended language, was The added repealed. amendment “directly to be language requires related to work Id. The words employee’s performance.” under the nearly synonymous, “connected” and “related” but functions by “directly,” is modified which provision, new “related” under to narrow the of work-related conduct is relevant scope Additionally, provision, new the statute. Id. under the Accordingly, must also be to “work performance.” related work, directly when apply does not conduct is related provision must performance. Finally, the conduct related busi significant impact upon employer’s have a “direct and interest.” If 2010 amendment anything, expanded ness Id. scope Chamberlin. plain 19. In to this conclusion drawn from the response internally argues the Board’s decision is
language, FAHC *8 both simple inconsistent since and provisions of the Act require employee’s conduct to be connected to applied and the Board simple disqualification to claimant, but not the misconduct disqualification. The short distinction, that argument answer the ALJ drew this claimant appealed disqualification never period decision to the disqualification Board. Claimant served his period, he has disqualification reason, contested the this Court. For this we do question not address the of whether claimant should have been a required to serve of period disqualification simple based on If misconduct. the ALJ and the Board made an error on this it an question, is not error FAHC can of advantage take challenge the of part the Board decision to it. adverse
¶ 20. FAHC
argues
also
that claimant
be disqualified
should
because,
receiving benefits
of his criminal
light
convictions
work,
place
and the
and nature of his
had no
choice but
discharge
him. We
dispute
decision,
do not
FAHC’s business
question
but the
of whether claimant
been
should have
disqualified
from unemployment compensation benefits is different from the
question
whether FAHC has
an
adopted
appropriate employ
Johnson,
policy.
ment
at
See
138 Vt.
Affirmed. Reiber, C.J., dicta, I dissenting. respectfully dissent. majority acknowledges the ALJ’s use of a “foreseeable” standard 1344(a)(1)(B) under “consequences” determine the provision. the simple-misconduct under employee’s *9 and, statute, in employing in the not a word used Foreseeability is majority clear nor the make neither the ALJ language, the limited subjective standard. This objective it or whether is struggling employers and will leave adds confusion interpretation the trying interpret Act when ambiguity under this with of statute the remaining portion under the majority’s decision by appeal, this presented
¶ under the Board and ALJ’s lead also follows majority 22. The a against in effect a presumption creates what the statute and not a standard that is under of finding Board majority the affirms a analysis, there. Without sufficient off-premises criminal conduct off-duty, that claimant’s conclusion and directly employee’s performance related to the work connected to his work. says rule that appears bright-line The to create 23. result I do likely gross act is not misconduct.
any off-duty, off-premises broadly. section so gross-misconduct not read the ¶24. past perfor- that claimant’s work The Board concluded no with it went further “generally acceptable” mance here was the of claimant’s off- analysis regarding impact findings in furtherance job performance conduct his criminal on premises rela- maintain a ability proper therapeutic his employer’s of The safety security. their and tionship patients, including with its off-duty, and and Board noted the conduct was off-site merely claimant with reports by no of similar conduct there were addressing short of or staff. Such a conclusion falls patients law, effectively in the and acknowledged concerns employer’s rewrites the statute. ALJ, Board the 25. In the before the and proceedings particu- on the of claimant’s
employer impact introduced evidence Employer on his noted performance. lar misconduct work it referenced relationship patients; nature of its special patients, to a some range claimant’s unfettered access states; its requirement it compromised introduced evidence provide ongoing that all consent employees hiring before checks; nature of crimes and it background emphasized But, response, the Board stranger. committed claimant by employee’s related to the “directly failed address statute, merely noting performance” component off-duty. affirming criminal act occurred off-site Board’s conclusion of no misconduct on facts these majority applying too far in goes principle deference to Board decisions. Furthermore, majority, Przekaza v. the cases cited by
Department
Employment Security, 136 Vt.
¶,27. reason, For I would reverse remand for further findings analysis of the issue raised FAHC’s appeal, question of the work-performance relationship, and for this reason dissent.
[57 700] No. 11-267 Reiber, C.J., Dooley, Skoglund, Burgess Robinson, Present: JJ.
Opinion August 10, Filed