Submitted June 12, 2019
On
Petition for Review of an Order of the Office of
Administrative Hearings (DOES-1317-17)
Jonathan H. Levy was on the brief for petitioner.
Before
Beckwith and McLeese, Associate Judges, and Nebeker, Senior
Judge.
NEBEKER, SENIOR JUDGE
Petitioner
Sarah Parker's application for unemployment benefits was
denied by a District of Columbia Department of Employment
Services ("DOES") examiner, a decision that was
affirmed by an Office of Administrative Hearings
("OAH") administrative law judge ("ALJ")
following a hearing. Before this court, petitioner challenges
the ALJ's finding that she voluntarily quit her job
without good cause. Respondent did not file a responding
brief. For the reasons discussed below, we reverse and remand
for further proceedings consistent with this opinion.
I.
Petitioner
worked as a full-time server at McCormick & Schmick's
Northwest D.C. location from August 7, 2013, to March 7,
2017. On March 7, petitioner informed her manager that she
was quitting, effective immediately. Petitioner said that she
quit because of her dissatisfaction with the restaurant's
tip pooling policy.
Subsequent
to quitting, petitioner applied for unemployment benefits.
The District of Columbia Unemployment Compensation Act
specifies that an applicant will be disqualified from
receiving unemployment benefits if she is found to have
voluntarily left her employment without good cause, and a
D.C. DOES claims examiner found that petitioner's
quitting for dissatisfaction with her employer's tip
pooling policy did not constitute good cause. Petitioner
appealed the claims examiner's decision.
The ALJ
presided over a hearing on September 5, 2017. It was not
contested that petitioner voluntarily quit, as petitioner
testified, "I did [] voluntarily leave my place of
employment and it was based on the fact that as servers we
make our living on tips and the company took a portion of
those tips for our support staff." Petitioner elaborated
that her employer "continued to take that money when we
did not have said support staff such as a busser or a host
and I asked many times to my bosses, to their bosses, why -
where does that money go? I had no help." Petitioner
said that this tip pooling policy was enforced several days a
week during the slower summer period, but at other times of
the year it would occur once a week or once a month.
Petitioner did not keep her concerns to herself as she
testified, "I mentioned it to four or five people all up
and down the line and nobody ever really gave me an answer
and I felt more and more frustrated and it more and more felt
like theft to me." In affirming the claims
examiner's decision, the ALJ concluded in a written order
issued on September 25, 2017, that petitioner failed to
establish good cause for her voluntary decision to leave her
employment. This appeal followed.
II.
Our
review of a denial of unemployment benefits is limited -
although we generally defer to the agency's construction
of a controlling statute or regulation, we must reverse such
a decision if the "findings and conclusions are
unsupported by substantial evidence in the record of
proceedings before the court." Hockaday v. District
of Columbia Dep't of Emp't Servs., 443 A.2d 8,
12 (D.C. 1982). Substantial evidence requires more than a
scintilla - "it means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Washington Post Co. v. District
Unemployment Comp. Bd., 377 A.2d 436, 439 (D.C. 1977).
For
voluntary leaves from employment, the claimant bears the
burden of presenting sufficient evidence to support a good
cause reason for leaving. 7 DCMR § 311.4 (2017).
"The circumstances which constitute good cause connected
with the work shall be determined by the Director based upon
the facts in each case. The test shall be, 'what would a
reasonable and prudent person in the labor market do in the
same circumstances?'" 7 DCMR § 311.5 (2017);
see also Kramer v. District of Columbia Dep't of
Emp't Servs., 447 A.2d 28, 30 (D.C. 1982). Examples
of good cause include failure to provide remuneration for
employee services. 7 DCMR § 311.7 (2017).
A
tipped employee is "any employee engaged in an
occupation in which [s]he customarily and regularly receives
more than $30 a month in tips." 29 U.S.C. § 203(t)
(2012).[1] There is no debate that petitioner here
qualifies as a tipped employee. Tip pooling arrangements are
permitted among "employees who customarily and regularly
receive tips." Kilgore v. Outback Steakhouse of
Fla., Inc., 160 F.3d 294, 300 (6th Cir. 1998) (quoting
29 U.S.C. ยง 203(m) (2012)). Identifying which employees
customarily and regularly receive tips is determined on a
...