June 12, 2019
Petition for Review of an Order of the Office of
Administrative Hearings (DOES-1317-17)
H. Levy, New York, New York, was on the brief for petitioner.
Beckwith and McLeese, Associate Judges, and Nebeker, Senior
Petitioner Sarah Parkers 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 ALJs 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.
Petitioner worked as a full-time server at McCormick &
Schmicks 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
restaurants 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 petitioners quitting
for dissatisfaction with her employers tip pooling policy
did not constitute good cause. Petitioner appealed the claims
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 examiners
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.
review of a denial of unemployment benefits is limited -
although we generally defer to the agencys construction of a
controlling statute or regulation, we must reverse such a
decision if the "findings and conclusions are
unsupported by ...