Court sides with new mom on wage issue

Unless an employer increases the wages of a returning new mother to help pay the costs of day care, she has good cause to reject the employment offer and receive unemployment benefits instead.

That was the decision of the Missouri Court of Appeals for the Southern District in a case of first impression handed down June 14.

In Placzek vs. Division of Employment Security, the decision of the Labor and Industrial Relations Commission ruling to award unemployment benefits to the new mother, Susan Cameron, of Springfield, was affirmed. At-torneys Matthew Placzek and William W. Francis Jr., the plaintiffs, plan to file a motion for a re-hearing, said attorney Ann R. Littell, who represented the two.

Attorney Marilyn Gail Green, of Jefferson City, who represented the state's interests, said, "I'm glad the court recognized the dilemma" today's working parents face with day-care costs.

The newest appellate judge, Nancy Steffen Rahmeyer, wrote the opinion for the court. It said that the commission found "good cause" in the woman's rejection of her old job because "after normal tax deductions ... Claimant would have $7.20 per week as disposable income."

"This court finds that a reasonable person would do the same thing under the circumstances of this case."

And further, "If the commission used 30 hours per week for calculating claimant's gross income (instead of 40), after only taxes and day-care costs were considered, she would lose money by going to work," the opinion continued.

The commission found that because her "circumstances changed since she left the em-ployment of appellant," she could turn down the job "for good cause," an important element in being able to qualify for unemployment benefits.

The woman had had a second child, and her child-care costs increased so substantially that she couldn't afford to pay for day care on the same salary.

She normally worked between 30 and 40 hours per week at $6.50 per hour, grossing about $260 per week, according to the opinion. With day care costs of $150 a week, general work ex-penses of $30 and taxes, that only left $7.20 of disposable income. If she worked 30 hours, she lost money, the opinion stated.

The court found the commission's conclusion to award her unemployment compensation was "supported by substantial and competent evidence and is not contrary to the law."

According to attorney Green, Cameron didn't refuse the offer outright. Instead, she discussed the finances with her husband, then turned down the offer.

"I think the court made the right decision," Green said. "The court recognized the problem of modern couples and modern child care. With child care being as expensive as it is ... this claim-ant was between a rock and a hard place in that the job she had with one child just wasn't going to make it with the second child."

But Littrell argued Cameron didn't make a counteroffer to the law firm. Green said she didn't have to, and wasn't really in a position as a file clerk to negotiate with the law firm. There was no evidence at the hearing before the deputy about negotiation, Green added. In fact, the firm hired a replacement for $7 per hour, according to the briefs filed in the case.

In the employers' brief, they argued that Cameron wasn't available for work as defined by law.

However the appeals court said that issue wasn't addressed by the deputy who made the finding, nor the lower appeals tribunal.

Littrell said in the request for a re-hearing that the employers will ask the court to reconsider its judgment and send the case back to the deputy to take evidence on the availability for work issue.

Green explained that being "unavailble for work" means a person puts himself in a position to not be available because he is taking classes or is ill or overly restricts his availability by demanding certain jobs at certain wages.

"Under these circumstances, (Cameron) wasn't making herself unavailable for work," Green said. She was able to perform the file clerk job but needed "a dollar more an hour. She wasn't pricing herself out of the labor market. It wasn't as if she was asking $10 to $12 an hour."

The employer "had more negotiation power than she had. They knew what her dilemma was, and they could have offered her more," Green added.