Johar v. Cal. Unemployment Ins. Appeals Bd., A162563
| Docket Number | A162563 |
| Decision Date | 13 September 2022 |
| Parties | Reena JOHAR, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Garfinkle Law Office, Gary S. Garfinkle and Maria J. Garfinkle, Lafayette, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown, Jennifer G. Perkell, Supervising Deputy Attorneys General, Julia A. Clayton, Ricardo Enriquez, Deputy Attorneys General, for Respondents.
This appeal requires us to address the circumstances when an employee who leaves work to care for a sick family member may be deemed to have "left ... her most recent work voluntarily without good cause," thus disqualifying her from unemployment benefits under section 1256 of the Unemployment Insurance Code.1
Briefly stated, the facts are these. With the agreement of her supervisor, Reena Johar, a home improvement salesperson, left work to care for a terminally ill relative, and while she was away her employer decided she had quit. She was gone about a week. Upon her return, the employer told her business was slow and gave her no new sales appointments. Johar eventually made a claim for unemployment benefits with the Employment Development Department (EDD), telling the EDD she lost her job due to a "temporary layoff."
The employer denied laying Johar off. While conceding that she left with her supervisor's approval, the employer advised the EDD that Johar's failure to provide a return date or otherwise communicate with her supervisor while she was away amounted to a voluntary quit. The EDD accepted the employer's position, found Johar ineligible for unemployment benefits, ordered reimbursement of benefits improperly paid, and imposed a penalty for willful misrepresentation in seeking benefits. An administrative law judge (ALJ) sustained the EDD's ruling, and the California Unemployment Insurance Appeals Board (CUIAB) affirmed, finding that "Basically, [Johar] abandoned her job."
Johar sought review in superior court by administrative mandamus petition. In response to the petition, the CUIAB confessed error for failing to consider new evidence discovered by Johar while the administrative appeal was pending. It requested a remand so the case could be reconsidered, and it acknowledged that Johar's new evidence may lead to a decision in her favor. At the CUIAB's invitation, the court dismissed the case without reaching the merits and remanded for further administrative proceedings. This appeal followed.
We will reverse. We conclude Johar was entitled to mandate relief on the existing administrative record. It is undisputed that she left her job in emergency circumstances with the employer's approval, and thus for good cause. The question is what to make of the circumstances after her departure. In assessing that question, we ask who the moving party was in terminating the employment relationship, bearing in mind that an employee who leaves work for good cause is entitled to a presumption that she has not voluntarily quit. The presumption may be overcome, but only upon evidence showing the employee positively repudiated her obligation to return in clear terms. The evidence here does not meet that standard.
Success Water Systems (SWS) sells water filtration equipment to residential customers under the brand name "EcoWater." Its sales referrals come from Costco and are for Costco members. Johar worked for SWS as a sales representative beginning in April 2019. Her job was to visit the homes of prospective customers, demonstrate the use of SWS's products using a "company test kit" and solicit sales on-site. After these visits, she fielded follow-up questions from sales prospects, and helped with preparation of the necessary order forms and related documentation once they decided to buy.
Johar's base pay was approximately $1,200 per month, paid twice monthly and calculated at a per diem rate, but the bulk of her compensation was in the form of commissions for completed sales, so she needed a continuing stream of work assignments in order to earn her full pay. Work assignments came from SWS schedulers, who dispatched her to sales appointments. Johar reported to Mari Lynn Johnson, an SWS Sales Manager. Carol Johnson was in charge of issuing checks for commissions and semi-monthly per diem payments.2
Shortly after Johar began working for SWS, in May of 2019, she took an approved leave of absence to go to Chicago to assist her grandmother, who was terminally ill. She was gone "about a week and a half." According to Johar, she was hired with the understanding that she might need to take leaves from time to time to care for her grandmother. With Mari Lynn Johnson's "full support," on October 23, 2019, Johar went out on another leave of absence to care for her grandmother. Upon returning in early November, she received no further sales appointments for many weeks and was told business was "slow."
Johar believed her employment with SWS was "ongoing," since considerable time sometimes passed between sales appointments. But she was not sure. SWS had taken some steps that suggested her employment was over—such as sending her a "final check" and asking for her test kit back—but had not followed through by telling her to stop communicating with prospective SWS customers she solicited before going to Chicago, paying her everything she was owed in commissions, or giving her directions about where to return her test kit.
Eventually, on February 2, 2020, having received no further sales appointments by the end of January, Johar filed a claim for unemployment benefits with the EDD. She listed the reason for her loss of employment with SWS as a "temporary layoff." EDD initially paid unemployment benefits for three weeks at $450, and notified SWS of Johar's claim. Carol Johnson replied to EDD's notice of claim for SWS under section 1327 by checking a "Voluntary Quit" box on the form for employer reply.
A brief investigation by EDD followed. An EDD investigator interviewed Johar and Carol Johnson. Johar told the EDD interviewer that she "requested family emergency leave on 102019" from Mari Lynn Johnson, expected to be gone three weeks, and was advised by Mari Lynn Johnson that "she can return at any time she is able and will still have her job."
The version of events given to the EDD interviewer by Carol Johnson differed, but not as to whether Johar left with SWS's approval. She acknowledged that Johar "had an agreement with" Mari Lynn Johnson to go to Chicago, but stated that the approved leave was not indefinite. According to Carol Johnson, Johar failed to respond to repeated requests for a return date, and was eventually deemed absent without leave. As shown on the summary of interview form, Johar's "date of separation" was October 31, 2019—which marked the end of her employment, from SWS's perspective—and the reason for her separation was "v[oluntary] q[uit]."
After completing its interviews, the EDD ruled against Johar and relieved SWS of any charges to its unemployment reserve account under section 1032. In its notice of determination, the EDD viewed Johar's departure for Chicago as an approved absence, but accepted SWS's position that she overstayed her leave, failed to communicate with her supervisor while gone, and failed to take steps to preserve her employment upon her return.
Under section 1256, the EDD ruled that Johar was disqualified from receiving unemployment benefits for her loss of employment with SWS, and under section 1257, subdivision (a), she was docked $2,250 from any future unemployment insurance claims made within three years. In a separate ruling, the EDD found that Johar willfully gave false information or withheld information to explain her job loss. Under sections 1375 and 1375.1, respectively, the EDD ordered Johar to reimburse overpaid benefits of $1,350 and to pay a 30 percent penalty ($405), for a total of $1,755.
Johar filed a handwritten pro se appeal of these adverse EDD decisions with the CUIAB, and the CUIAB assigned the appeal for initial consideration to an ALJ, who held a brief evidentiary hearing by telephone. Johar appeared and testified for herself. Mari Lynn Johnson, Carol Johnson, and Lloyd Stack, SWS's general manager, appeared for SWS; and the two Johnsons gave substantive testimony. Each side tendered packages of documentary exhibits, mostly copies of electronic communications between Johar and her managers and coworkers at SWS in the timeframe September 2019 to early February 2020. Except for a few of SWS's proffered exhibits that Johar had no opportunity to review before the hearing, these exhibits were admitted into evidence without objection.
The witness testimony in the ALJ hearing aligned with the positions taken before the EDD.
Mari Lynn Johnson admitted she was "in full support of [Johar] going and taking care of her grandmother." There was no evidence that Mari Lynn Johnson conditioned Johar's leave on a specific return date; she testified, "I just had figured she'd be coming back." Mari Lynn Johnson acknowledged that there was never any formal "separation" of Johar from SWS. She maintained, however, that after leaving, Johar failed to reply to repeated requests from her for a specific return date. Carol Johnson testified to the same series of events, and added that she sent a "final check" on November 5.
In her testimony, Mari Lynn Johnson supplied a new detail that had not been provided to the EDD. She explained to the ALJ that, as a Costco vendor, SWS is a licensed home improvement contractor, that SWS's sales representatives, too, must be "lice...
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California Employment Law Notes
...WHO LEFT WORK TO CARE FOR ILL RELATIVE DID NOT QUIT HER EMPLOYMENT AND WAS ELIGIBLE FOR UNEMPLOYMENT BENEFITS Johar v. CUIAB, 83 Cal. App. 5th 259 (2022)Reena Johar, a home improvement sales person, left work to care for a terminally ill relative, but after just one week, the employer "deci......