Opinion
No. A03-707.
Filed March 9, 2004.
Appeal from the Department of Employment and Economic Development, File No. 56403.
Daniel B. Honsey, Kraft, Walser, Hettig Honsey, (for relator)
Dan K. Prochnow, Counselor at Law, (for respondent employer)
Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, (for respondent Commissioner of Employment and Economic Development)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this appeal from a determination that relator is disqualified from receiving unemployment benefits because she quit her employment without a good reason caused by the employer, relator argues that a preponderance of the evidence does not support the commissioner's representative's determination that relator was not subjected to adverse changes to her terms of employment. We reverse.
FACTS
Relator Judy C. Schlueter worked 40 hours per week as an office manager and accountant for respondent Reiner Contracting, Inc., from February 26, 1996, through December 5, 2002. At the beginning of 2002, relator's employment benefits included three weeks of paid vacation, sick time, and the option to carry over one week of vacation from one year into the next year. At a safety meeting in March 2002, all employees received a new employee handbook that changed employee benefits. The company policy became that employees who had been with the company for more than six years would receive two weeks of personal time each year. The personal time could be used for vacation and sick time, and employees could not carry over any vacation time from one year to the next year.
Relator testified at the hearing before the unemployment law judge (ULJ) that after the safety meeting, she had a conversation with Craig Reiner, the president of Reiner Contracting, and he told her that she would keep her three weeks of vacation, unlimited sick time, and could carry over one week of vacation from one year to the next. Dedra Reiner, the vice president of the company, testified at the hearing that relator was given three weeks of personal time, but relator was not told that she would also receive sick leave; the personal time was to be used for vacation and sick time.
Before this conversation, it appears that relator received unlimited sick time because she would receive her 40 hours pay each week regardless of her sick time.
In November 2002, relator missed two and a half days of work because she was sick. On December 2, 2002, relator requested vacation time for Friday, December 6, Monday, December 9, and one-half day on Friday, December 13. In a conversation on December 5, 2002, Craig Reiner told relator that her two sick days in November were taken from her personal time, leaving relator only 0.5 personal days, which was not enough to cover her 2.5 requested days off for December. Relator testified that
my comment to him was that he took away my sick days, and he says, well, he says, you don't, you know, those are vacation days. And I said to him, I says, well, ever since you started, you said I could get sick days plus also the three weeks of vacation. And he said, well, he says, I'm tired of everyone around here. He said from now on, he said, everyone's going to go by the employee handbook.
Relator submitted documents to the ULJ stating that Craig Reiner also told her on December 5, 2002, that her work hours were reduced from 40 to 24 hours per week beginning December 9, 2002.
On December 9, 2002, relator came to work and gave Craig Reiner her resignation letter indicating that she quit as of December 5, 2002.
Relator applied for unemployment benefits, and the department determined that she was disqualified from receiving benefits. Relator appealed, and a ULJ reversed, concluding after a telephone hearing that relator quit her employment because her employer changed the terms of her employment regarding vacation time, sick leave, and hours of work. The ULJ found that "[relator] was told that her hours were being cut to 24 hours a week effective December 9, 2002, because she was not working full time with all the vacation time she was taking." Reiner Construction appealed the ULJ's decision, and the commissioner's representative reversed. The commissioner's representative found that relator was not subjected to adverse changes to her terms of employment. This certiorari appeal followed.
DECISION
"An applicant who quit employment shall be disqualified from all unemployment benefits except when the applicant quit the employment because of a good reason caused by the employer." Minn. Stat. § 268.095, subd. 1(1) (2002). "A substantial adverse change in the wages, hours, or other terms of employment by the employer shall be considered a good reason caused by the employer for quitting unless the change occurred because of the applicant's employment misconduct." Minn. Stat. § 268.095, subd. 3(c) (2002).
Relator does not dispute that she quit her employment. But she argues that she quit because of adverse changes in the terms of her employment and that the record does not support the commissioner's representative's finding that she was not subjected to adverse changes to her terms of employment. Relator contends that the commissioner's representative ignored evidence about the conversation she had with Craig Reiner on December 5, 2002, during which Reiner told her (1) that her hours would be reduced from 40 to 24 hours per week effective December 9, 2002; (2) she would no longer get sick time; and (3) she would only get vacation according to the handbook.
All issues of fact under the Minnesota Unemployment Insurance Program Law shall be determined by a preponderance of the evidence. Preponderance of the evidence means evidence in substantiation of a fact that, when weighed against the evidence opposing the fact, is more convincing and has a greater probability of truth.
Minn. Stat. § 268.03, subd. 2 (2002).
On appeal, a reviewing court must examine the decision of the commissioner's representative, rather than that of the ULJ. Kalberg v. Park Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). "We review the commissioner's factual findings in the light most favorable to the commissioner's decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings." Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The findings of fact made by the commissioner's representative shall be based on the evidence submitted at the hearing before the ULJ. Minn. Stat. § 268.105, subd. 2(c) (2002).
The evidence submitted at the hearing before the ULJ includes a five-page letter written by relator. The letter, which is identified as Department's Exhibit 2, contains a description of events that occurred on December 5, 2002, when relator requested vacation time for Friday, December 6, Monday, December 9, and Friday, December 13. The letter states that Craig Reiner said to relator, "STARTING ON MONDAY, YOU ARE GOING DOWN TO 24 HOURS. IF YOU CANNOT GET YOUR WORK DONE IN THOSE 24 HOURS, YOU WILL HAVE TO DELEGATE YOUR WORK TO DEDRA." The evidence submitted at the hearing also includes a typewritten form and relator's responses to the questions on the form. Two of the questions on the form asked if there was a final incident that made relator quit, and, if there was, when and what was the incident. Relator responded that there was a final incident that made her quit and described her December 5, 2002, conversation with Craig Reiner. Her description includes the statement, "MY HOURS WERE GOING TO BE REDUCED TO 24 HOURS STARTING ON 12-9-02."
The commissioner's representative found, "A preponderance of the evidence does not lead us to conclude the employer violated its employment agreement with [relator] or that [relator] was subjected to adverse employment conditions or changes to her terms of employment."
Dedra Reiner's testimony that when the company's policy changed in March, relator was given three weeks of personal time that was to be used for vacation and sick time, but relator was not told that she would also receive sick leave, supports the commissioner's representative's finding that, in December, relator was not subjected to changes to her terms of employment with respect to vacation and sick time. But there is no evidence in the record that contradicts relator's evidence that Craig Reiner told her on December 5 that her hours were reduced from 40 to 24 hours per week. With respect to the reduction of work hours, the only evidence submitted in the hearing before the ULJ is evidence in substantiation of the fact that relator's hours were reduced. Therefore, with respect to hours of employment, the commissioner's representative's finding that relator was not subjected to adverse changes to her terms of employment is not supported by a preponderance of the evidence.
Craig Reiner did not testify during the hearing before the ULJ.
In Danielson Mobil, Inc. v. Johnson, 394 N.W.2d 251 (Minn. App. 1986), this court concluded that when an employer eliminated eight hours of overtime work each week and caused a 19% reduction of wages, the wage reduction was a substantial change in the terms of employment, and, therefore, the employee quit with good cause attributable to the employer. In the present case, relator faced a 40% reduction in wages when her work hours were reduced from 40 to 24 hours per week. Thus, under Danielson Mobil, the reduction is a substantial adverse change in the wages, hours, or other terms of employment, and the commissioner's representative erred in determining that relator quit her employment without good reason caused by the employer.