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Stacey A. Evans v. Board of Review

April 10, 2012

STACEY A. EVANS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND LIBERTY TRAVEL, INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 268,803.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2012

Before Judges Simonelli and Hayden.

Appellant Stacey Evans appeals from the October 28, 2010 final decision of the Board of Review (Board), which affirmed the April 9, 2010 decision of the Appeal Tribunal that Evans was disqualified from receiving benefits under N.J.S.A. 43:21-5(a) as of December 27, 2009 because she left her employment at respondent Liberty Travel, Inc. (Liberty Travel) without good cause attributable to the work. We affirm.

In September 2000, Evans began her employment as a travel consultant with Liberty Travel. Senior agents, like Evans, worked weekends based on the needs of the office. It was not unusual for Liberty Travel to change an employee's work schedule, and changes occurred frequently depending on the season. On March 12, 2009, Evans executed an employment contract, which provided, in part, as follows:

Days and Hours. Employee agrees that Employer may designate the days and hours to be worked by Employee, which may include day or night hours, Saturdays, Sundays and holidays, or other days or hours deemed necessary by Employer. Employee further agrees that Employer may change Employee's work days and hours from time to time at the discretion of Employer. Employee agrees that he or she will work additional hours as required by Employer.

Prior to July 2009, Evans worked on Monday from 1:00 p.m. to 9:00 p.m., Tuesday, Wednesday and Thursday from 9:00 a.m. to 6:00 p.m., and Sunday from 11:00 a.m. to 5:00 p.m. Evans commenced maternity leave on July 27, 2009, and was scheduled to return to work on January 3, 2010. On December 11, 2009, her supervisor, Dorothy Marlin, contacted Evans to discuss Evans's work schedule for the following month. Marlin told Evans that she was not sure about the winter schedule and suggested that Evans's work schedule might change. By December 27, 2009, Evans had filed a claim for unemployment benefits.

On December 28, 2009, Marlin advised Evans that her new work schedule would be Monday, Wednesday, and Friday from 9:00 a.m. to 6:00 p.m., Thursday from 1:00 p.m. to 9:00 p.m., and Saturday from 10:00 a.m. to 5:00 p.m. According to Marlin, since the winter is the busiest time of the year for booking trips, the office was particularly active on weekends and she needed Evans to work on weekends because of Evans's experience as a senior agent.

Evans told Marlin that she could not work the new schedule because she had arranged for her mother to care for her child, and her mother was not available on Saturdays. The parties dispute whether Evans was terminated or resigned at this point. However, there is no dispute that after Evans contacted the district manager about her new work schedule, Marlin advised Evans that she could return to work for four weeks at her old schedule while she secured childcare to accommodate the new schedule. In addition, because Evans was a valued employee and the company "needed her[,]" Marlin would have extended that time period to eight weeks and perhaps longer, in order to afford Evans more time to secure childcare before changing her schedule. According to Marlin, Evans would not have been terminated if she had not secured childcare, and Marlin would have tried to accommodate her; however, Evans did not return to work.

The Appeal Tribunal found Evans was disqualified for benefits for the following reason:

Here, the claimant left the job because she felt the employer was committed to changing her hours of work to those that childcare was unavailable to her. However, the claimant was informed by the employer a few days later, while she was still on leave, that she could return to her customary schedule for one month, and seek childcare during that period for the one day that posed a "conflict" with the claimant's childcare providers (her family members). The claimant refused the employer's offer to return to the job at her regular hours and make an attempt to obtain childcare for the proposed future schedule. Although the claimant contends that she had already cancelled her childcare arrangements by the time the original schedule was offered, this action is not reasonable prior to exhausting opportunities to resolve the situation, which she was doing by contacting the district manager. Her failure to make a reasonable attempt of retaining her employment falls even shorter in view of the fact that the claimant signed a document on 3/12/09 which, at minimum, put the claimant on notice that such schedule changes could occur. Finally, there is no indication that future scheduling negotiations were completely precluded, or that the claimant would have been discharged if the claimant had returned to work and was ultimately unsuccessful in obtaining childcare for Saturdays.

The claimant did not establish good cause for voluntarily leaving the work, and is disqualified for benefits as of 12/27/09, in ...


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