Suitable Work SW 440
This section discusses conditions of work in relation to determining suitability of employment or good cause for refusal. Wages and Time, although properly considered a condition of work, are so significant they are discussed separately in Section SW 500.
Under the provisions of Section 1259(b), an otherwise eligible and qualified individual cannot be disqualified for refusing new work if:
". . . The wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality."
Unlike wages and hours which can be given definite numerical values, other conditions of work cannot. It is easy to compare two wage rates or the length of workweeks, but other conditions cannot be so precisely measured. Additionally, unusual or apparently unfavorable conditions of work are frequently offset by a differential in wages or hours, or by other conditions which are more favorable than those prevailing in the industry.
In P-B-322 several claimants refused prospective employment with the Military Sea Transport Service (MSTS) on the grounds that the work offered less pay benefits and did not allow the right to strike. In holding that the work was suitable, the Board stated:
". . . We find nothing in the evidence with respect to the conditions of employment with the Military Sea Transport Service which would render such work substantially less favorable than similar work in the claimants’ locality. Whatever fringe benefits the claimants might realize by virtue of working for private shippers under contract with the Union are offset by the more advantageous conditions connected with Federal employment . . . . Nor do we think that MSTS employment is rendered unsuitable by reason of the fact that the claimants would not enjoy the right to strike . . . . The evidence further establishes that MSTS employment afforded the claimants a procedure for adjusting grievances. . . . Hence the claimants’ contention that acceptance of the proffered employment would have deprived them of certain grievance procedures . . . is without substance. . . ."
If a claimant refuses a referral or work on the grounds that the conditions of work are unsuitable, and the individual has no first-hand knowledge of the actual conditions, he or she will ordinarily be subject to disqualification under Section 1257(b).
Such was the finding in P-B-323. The Board, in holding the claimant subject to disqualification, stated:
". . . The claimant did not investigate the offer of employment in person and had no first-hand knowledge of the type of work or the conditions thereof. On the other hand, the representative of the Department who personally visited the employer’s establishment testified that he found no conditions of work to render it unsuitable for the claimant. The claimant’s refusal of work on this ground appears to be based merely on personal preference for other work and would not be good cause for refusing the referral to suitable employment, especially in view of the claimant’s lack of work prospects in her personally desired field of employment . . . ."
A claimant is also obliged to attempt to obtain an adjustment of any objectionable condition if it appears there may be a likelihood of success.
In P-B-326 the claimant had refused an offer of reemployment. In holding the claimant eligible, the Board stated:
". . . The claimant had on numerous occasions objected to the assignment of duties which caused damage to her clothing and which did not afford her an opportunity to make appropriate changes in attire. Her request to have this situation remedied had not resulted in a satisfactory solution of the problem, even after she had once voluntarily left the employment because of the unsatisfactory working conditions. Although the employer has alleged that adjustments could have been made in the conditions of employment if the claimant had responded to the offer and voiced her objections, the evidence shows that the claimant’s supervisor was cognizant of the claimant’s reasons for leaving the work and the claimant stated that when she refused the employer’s offer of work by mail she indicated her reasons for refusal as unsatisfactory working conditions . . . The claimant was justified in assuming, when not notified to the contrary, that the offer of reemployment was for the same position and under the same working conditions as she had previously found to be objectionable, and she therefore was under no obligation to investigate the proffered work. . . . "
The Board reached the same conclusion in P-B-307. The claimant refused an offer of reemployment to a position she had previously quit due to intolerable working conditions. In its decision, the Board stated:
"The circumstances in this case . . . created a situation which made the claimant’s working conditions intolerable. The claimant was employed as a hand decorator. She was not provided with proper working space; she was forced to listen to vulgar and vile language; and she was on occasions assigned to perform tasks not within the scope of her duties. Her complaints to the employer were futile. Considering these facts we hold that the claimant had good cause for voluntarily leaving her work . . . . In addition, since she refused the offer of work made by the employer . . . for the same reasons which compelled her to leave, she had good cause for the refusal . . . ."
It should be noted that in these cases the claimant had personal knowledge of the objectionable conditions and had made unavailing attempts to have the conditions remedied while still employed. Having informed the employer that she was refusing the offer of reemployment because of unsatisfactory working conditions, she was under no obligation to investigate the matter further because the employer was aware of her objections and had made no offer to correct them.
In P-B-324 the claimant refused a referral to prospective employment based on the fact that, while previously employed, she was required to deal with a dissatisfied customer; that dissatisfied customer was the prospective employer. The incident had occurred almost two years prior to the referral attempt. In its decision, affirming the disqualification, the Board stated:
" . . . The final question to be determined is whether the claimant’s unpleasant past experience with the prospective employer gave her good cause to refuse the referral. In our opinion, it did not. The experience was almost two years in the past at the time the referral was made and it was not of such a severely unpleasant nature as to warrant any arbitrary rejection of consideration of prospective employment. Both the lapse of time and the minor nature of the episode lead us to conclude that the claimant should have been willing at least to consider the possibility of employment."
B. Risk of Illness or Injury
Federal and State statutes provide numerous safety regulations to safeguard workers from illness or injury. Any work offered that violates such statutory regulations would be unsuitable and may be refused by the claimant with good cause.
Since statutory regulations regarding safety impose a penalty for violation, there is a strong presumption that any work offered is in conformity with the law. Consequently, no allegation or mere supposition that the offered employment does not conform to the legal requirements as to safety can constitute good cause for refusal.
However, where it is established that the prospective employment is hazardous by statutory definition or does violate safety regulations, the claimant is not required to show that his own health would necessarily be in danger. The mere fact that the work, itself, is in contravention of the law is sufficient for a ruling of good cause.
All occupations entail some degree of risk and a claimant must ordinarily accept the risk customary in his or her occupation. However, where the risk to safety is excessive either because of the nature of that particular job or because of some personal disability of the claimant, the individual will have good cause for refusal.
If a claimant is referred to work in other than his or her usual occupation, it may be necessary to compare the degree of risk involved in the individual’s previous occupation with that in the offered employment. If the work, though in other respects similar to the claimant’s usual occupation, involves a significantly greater risk to safety, the work may be unsuitable under Section 1258. For example, a claimant whose regular occupation is gardener, could refuse employment as a tree pruner because of the greater risk involved in climbing tall trees.
Risk to Others
Occasionally, a claimant will refuse an offer of work or referral because they contend that acceptance of the work would endanger the public or other workers because of their physical or mental deficiency. In such cases it must be established that the claimant actually suffers from the alleged condition and that an actual risk exists.
A claimant may refuse work or a referral because of an objection to the area in which the job is located. Good cause cannot be established for such a refusal unless it is based on an actual risk to the claimant’s health or safety.
In P-B-134 the claimant declined a referral explaining that she was afraid to work in the Berkeley area. Approximately two years before she had been in Berkeley during the student riots and some of the rioters had attempted to overturn her car. The site of the work was nowhere near the University. The claimant had no prospects of other work and the salary was within the prevailing scale for her qualifications. In affirming the disqualification, the Board stated:
"The claimant in this case was notified of a job opening which was in all respects suitable to her. She did not apply for this work because she did not want to work in Berkeley as she had an unpleasant experience in that city. Had she investigated the area of the work location, she would have found that it was . . . in a quiet section of Berkeley."
The Board also stated that when a claimant is in doubt as to the suitability of work to which he or she is referred, the individual should apply in person and ascertain firsthand whether the work is suitable.
In P-B-325, the claimant introduced evidence that the area she would have had to traverse on foot was one in which crimes of violence had recently occurred and in which unescorted women were frequently accosted. In its decision, the Board stated:
". . . It is sufficient to render work unsuitable provided the facts in a particular case disclose the individual to whom the work is offered has a reasonably grounded apprehension that acceptance thereof would result in a probable risk to safety . . . ."
Physical environment is also frequently a matter of considerable importance to a claimant in the choice of employment. Among the features of physical environment to which claimants commonly object are offensive odors, air, and noise; antiquated equipment and crowded conditions.
Where the offensive condition exists and it can be shown by reliable evidence that the offensive condition is actually injurious to the claimant’s health or safety, the claimant will have good cause for refusal.
In P-B-263, the claimant refused offers of work in two different classifications from her former employer because of the air conditioning. The Board, after holding that the claimant had good cause for leaving her employment because the air conditioning was dangerous to her arrested case of tuberculosis, stated:
". . . Since the claimant’s reason for refusing the offer of work in two different classifications by her former employer was the same as compelled her to leave this employment, namely air conditioning, we hold that the claimant had good cause for voluntarily refusing such offer. . . ."
C. Government Requirements
Certain occupations require that the claimant have a license, permit or security clearance in order to perform the work. For example, no employee may drive a vehicle without a driver’s license; beauticians are required to be licensed; many construction trades require permits; and some types of work are classified and require security clearance as a condition of employment.
A claimant who is not able to obtain the required license, permit or clearance, will not have refused suitable work without good cause. Any such offer would not be considered suitable. (If the work is in the claimant’s usual occupation, an availability issue is present which requires resolution.)
If a claimant is offered or referred to otherwise suitable work that requires a license, permit or clearance, and the individual refuses because he or she does not wish to obtain such a permit, the individual will have refused suitable work without good cause.
A claimant who refuses an offer or referral to otherwise suitable work because the individual does not think he or she will be able to obtain the required document will have refused without good cause. The claimant has an obligation to try to obtain the required license, permit, or clearance. It is the claimant’s responsibility to attempt to get the job, not just assume he or she cannot.
Employment offered on the contingency that acceptance thereof would necessitate certain expenditures is not necessarily unsuitable, nor does such a condition establish good cause for failure to apply for work.
Each case must be considered on its own particular facts and the reasonableness of the requirement judged in light of such factors as the customs and usages in the particular trade or occupation; the extent of the required financial outlay and its reasonable relation to the permanency and pay of the work offered; the ability of the claimant to comply with the requirement; and whether compliance would result in undue hardship to the particular claimant.
If the claimant is required to provide equipment that represents a considerable cash outlay, and the claimant does not have the cash, he or she would have good cause for refusing otherwise suitable work.
However, if the financial outlay would be minimal and the claimant simply doesn’t want to spend the money on the required equipment, good cause will not be established for the refusal.
E. Lack of Opportunity for Advancement
In most cases, a lack of opportunity for advancement does not constitute good cause for refusal of otherwise suitable employment.
In some cases, however, acceptance of certain work may injure the claimant’s future career, for example:
- A cook whose entire recent work history has been as a dinner chef at gourmet restaurants refuses a referral to a local lunch diner.
- An actress who has worked in both big screen and TV movies refuses to work in an X-rated movie. The acting she is required to do is "dramatic" but would require nudity.
In such cases, careful fact finding may result in a conclusion that the work offered is not actually in the claimant’s usual occupation and is, in fact, unsuitable.
However, if the work offered is clearly in the claimant’s usual occupation, the claimant may have good cause for refusal provided acceptance of the job would directly and definitely be detrimental to his or her future prospects, and the claimant has good prospects of obtaining more desirable work within a reasonable period of time.
If refusal is solely because the job offered does not provide opportunity to learn and acquire higher skills, good cause is not established.