2011-644, Appeal of Casey B. Moore

New Hampshire Legal Assistance

(New Hampshire Department of Employment Security)

dispute about when Moore would be paid for work he had previously independent contractor. On Thursday, July 15, Moore and Guillemette had a sometimes getting paid as an employee of GTS and sometimes as an

No. 2011-644 See Department of Employment Security

by Ken Guillemette. He worked part-time at a rate of $31.25 per hour,

, attorney general (James S. Culp

unemployment benefits because he voluntarily left his job without good cause.

arborist in 2008 for Guillemette Tree Services (GTS), a small business owned The record supports the following facts. Moore began working as an reporter@courts.state.nh.us RSA 282-A:32, I(a) (2010). We affirm.

Hampshire Department of Employment Security (DES) finding him ineligible for appeal tribunal (tribunal), as affirmed by the appellate board, of the New ___________________________ LYNN, J. The petitioner, Casey B. Moore, appeals a decision of the THE SUPREME COURT OF NEW HAMPSHIRE brief and orally), for the New Hampshire Department of Employment Security. Michael A. Delaney, attorney, on the

to press. Errors may be reported by E-mail at the following address: and orally), for the petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 (a) In violation of constitutional or statutory provisions;

inferences, or conclusions are:

appellant had been prejudiced because the administrative findings, determined by the court, only if the substantial rights of the tribunal, or remand the case for further proceedings, as

fact. The court shall reverse or modify the decision of the appeal

without good cause. See

appeal tribunal as to the weight of the evidence on questions of The court shall not substitute its judgment for that of the

Judicial review of DES decisions is governed by RSA 282 - A:67 (2010):

that he left work voluntarily.

application based upon its finding that he voluntarily left his job at GTS Moore thereafter applied for unemployment benefits, but DES denied his

them.

also argues that, whatever the burden of proof, the tribunal erred in concluding

subcontractor. Moore then left, and there was no further contact between

or was fired is a factual inquiry to be made in the first instance by DES. Moore The State, on the other hand, argues that whether a claimant voluntarily quit assign the burden of proof to GTS to show that Moore left work voluntarily. On appeal, Moore argues that the appeal tribunal erred by failing to

responded that he would work as soon as Guillemette hired him as a about it.” He then asked Moore, “So what’s going on for today?” Moore $51.25 per hour. Guillemette expressed frustration and said, “I’ll have to think

reconsideration, and this appeal followed. the tribunal’s ruling. The appellate board denied his timely motion for

and stated that he wished to continue working for GTS as a subcontractor for

was denied. He subsequently appealed to the appellate board, which affirmed

told Guillemette that he wanted to “finish our conversation from Saturday,” morning to begin that day’s work. Before they started work, however, Moore The next Monday, Moore arrived at Guillemette’s house early in the

left his job. Moore then filed a motion to re-open the tribunal hearing, which affirmed the denial of benefits because it also concluded that Moore voluntarily held a hearing at which only Moore and his attorney appeared. The tribunal

required to work that day. previous day. Moore, however, claimed he was unaware that he had been also issued Moore a written warning for failing to show up at work on the

wages, which Guillemette paid partially by cash and partially by check. He performed. The following Saturday, Moore met with Guillemette to collect his solely from evidence proffered by the employer

p. 3 appear in the DES proceedings. In other words, such a finding need not derive

benefits under a statutory disqualification even where the employer does not based upon all the evidence presented, that the employee is ineligible for proving that a disqualification applies does not preclude DES from concluding, Of course, the mere fact that the employer normally bears the burden of

282-A:32, I(d). work when so directed . . . or to accept suitable work when offered him,” RSA individual has “failed, without good cause, either to apply for available, suitable

proving statutory eligibility for benefits rests with the claimant. Cf

misconduct connected with his work,” RSA 282-A:32, I(b); or, that the

case law from other jurisdictions persuades us that the burden of initially 3 compensation benefits. Our review of the overall statutory scheme as well as bears the burden of proof with regard to eligibility for unemployment alleges that he was fired, Guillemette expected that they would proceed to work working for GTS. He admitted, for example, that on the very morning he In this case, Moore’s own testimony established that he voluntarily quit

commissioner,” RSA 282-A:32, I(a); that the individual was “discharged for voluntarily without good cause in accordance with the rules of the may show, among other disqualifications, that the individual “left work

We have not previously had occasion to address the issue of which party Cf not participate in the proceedings – to establish that a disqualification applies. RSA 282 - A:67, V.

unwilling to participate in the proceedings. (e) Affected by other error of law. require the State to pay benefits whenever the employer is unavailable or

purported employer to establish the exception.”). For example, the employer

employer – or the DES, if it opposes payment of the claim and the employer did

whole record; or

applicability of a statutory exception is contested, the burden is on the . Appeal of John Hancock Distributors, 146 N.H. 124, 127 (2001) (“Where the

basic elements of employment and termination, however, the burden is on the Labor, 27 A.3d 1096, 1098 (Vt. 2011). Once the claimant has established the Marketing LLC, 328 S.W.3d 488, 491 (Mo. App. 2010); Blue v. Department of Davison, Copple et al., 814 P.2d 29, 32 (Idaho 1991); Duncan v. Accent

(d) Clearly erroneous in view of the substantial evidence on the. Steffen v.

(c) Made upon unlawful procedures;

(b) In excess of statutory authority; p. 4 “terminate[d] the employee-employer relationship.” See

facts, there is ample support for DES’s finding that Moore voluntarily

.

thereafter severed his relationship with Guillemette. Therefore, under these considered his demand for increased pay, Moore left of his own volition and an employee altogether. And, instead of continuing to work while Guillemette

either acceding to Moore’s request for a significant pay raise or losing him as

Guillemette was “frustrated” and “all ticked off” when faced with the choice of DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred. his claim that Guillemette fired him; to the contrary, Moore admitted that Affirmed had been paid the previous two years. Moore presented no evidence to support

Emp 503.01(a)(1).

was hired as a subcontractor for $51.25 per hour – $20 more per hour than he as usual. Yet he told Guillemette that he would not work that day unless he