Will Market Basket Contest Unemployment?

The Boston Globe is reporting that Market Basket workers are saying that the co-CEO’s have sent letters setting a deadline for a return to work.  The letter directs the employee to return to work or “the company will consider you to have abandoned your job, thereby ending your employment with the company.”

Eligibility for Unemployment Benefits

Will Market Basket contest Massachusetts employee claims for benefits for those employees who don’t show up for work?  If so, it will most certainly spark unemployment eligibility issues.  After an employee files for unemployment benefits, the Department of Unemployment Assistance (“DUA”) sends a request for wage and separation information to the employer. In a situation other than being laid off for a lack of work, the DUA sends out questionnaires to the company and the employee.  The DUA determines eligibility and whether the employee is disqualified based upon the information submitted.

Disqualification for Benefits

Striking workers under the unemployment benefits law are generally not entitled to collect benefits where there is a work stoppage that substantially curtails the company’s business.  There is an exception where there is a company lockout, where a company withholds work and closes a business because of a labor dispute.

An employee can also be disqualified from receiving benefits if the employee left work voluntarily, unless the employee shows that he or she had good cause for leaving attributable to the company. (M.G.L. c. 151A (e)(1)).  This is an interesting one, because Market Basket may take the position that the employee didn’t show for work, abandoned the job and left work voluntarily.  Some employees may take the position that they were fired.   There is obviously an on-going labor dispute. Employees aren’t just abandoning their jobs by failing to show up for work.  It will ultimately be up to the DUA to determine if an employee abandoned his or her position and is therefore disqualified.

Employees can also be disqualified from receiving benefits if they are fired because of (1) deliberate misconduct in willful disregard of the employer’s interest or (2) a knowing violation of a reasonable and uniformly enforced rule or policy. (M.G.L. c. 151A (e)(1)).

The employee must typically show that there were mitigating circumstances, such that the employee was not willfully disregarding the company’s interest. The DUA will ultimately make the determination about whether Market Basket workers will be disqualified for benefits under the circumstances.

Consideration on a Case by Case Basis

What if hundreds of employees don’t show up on Friday and are fired and then file for unemployment benefits? The DUA determines eligibility on an individual basis.  In this situation, however, the Director of the agency may need to give guidelines to the service representatives on how to handle these claims for benefits given the situation.

The Massachusetts Attorney General has taken the unusual step of setting up a hotline exclusively for Market Basket workers.  The company’s employment decisions are playing out in media and are being closely scrutinized.  The company’s latest ultimatum will keep that hotline lit up this week.  Market Basket workers will want to know if they will be eligible for unemployment benefits if they don’t show up for work and the company fires them.

Attorney Maura Greene has been named a Super Lawyer in the area of employment.  She is AV-rated by Martindale Hubbell, which is the highest rating an individual lawyer may receive.  She is a graduate of Smith College and Suffolk University Law School, where she was a member of Law Review.  Her firm, Law Office of Maura Greene, LLC is located at One International Place, 8th Floor, Boston, MA 02116.  She may be reached at 617-936-1580 or at maura@mauragreenelaw.com.