Unemployment Hearing Case: Refusal of Suitable Work
Case Analysis: Claimant’s Refusal of Suitable Work as it Required him to Work Weekends
A company provides security services to clients. They hired the claimant as a part-time employee working as needed on various assignments. The claimant placed limitations on his availability. The employer stated he had refused suitable work.
At the Hearing
The Employer’s Evidence: The employer testified that the claimant was hired to work part time, and was assigned to various clients as needed by the employer. The claimant worked for the employer in this capacity for approximately three-and-a-half years working an average of 16 hours per week for the same client. However, the employer’s client made changes to their requirements and the hours the claimant had been working were no longer available to the claimant. The claimant was offered several other assignments for the same number of hours and pay, but it required the claimant to work weekends. The claimant declined those assignments. The employer stressed that weekend hours are customary for the security industry.
The Claimant’s Evidence: The claimant testified that he had told the employer at the time of hire that he was not able to work weekend hours. The claimant states that he travels frequently on weekends to see family in neighboring states and would not be able to accept weekend assignments. He argued this was not a refusal of suitable work.
The Hearing Decision
The ALJ found that:
- The evidence established that the claimant was essentially an on-call employee to provide security services, as needed.
- The claimant was always a part-time employee and never full-time with them.
- His hours were contingent upon whether or not the employer had requests for security services from its clients.
- The claimant had always refused weekend hours, although weekend hours were available and were common in the industry.
- Since the claimant limited the number of hours he was available to work, the ALJ found that the claimant was unduly restricting his availability for part-time work and had therefore refused suitable work.
- The ALJ ruled that the claimant was not eligible for benefits.
The claimant appealed. The claimant argued that:
- He never worked weekends and advised the employer at time of hire that he would be unavailable to work weekends.
- The claimant argued that the assignments offered were not suitable because the work was for weekends. Thus, it was not the same schedule he had been working.
- He testified that he would accept an offer of suitable work that did not include weekend hours.
The Board of Review Decision
The Board of Review (board) could not come to an agreement, so they had no choice but to agree with the ALJ’s decision.
Each of the three board members voted a different way:
- One board member voted to affirm the ALJ’s decision in its entirety.
- Another Board member voted to remand the ALJ’s decision, requesting additional evidence for testimony.
- This was because the record did not contain information about whether or not there were assignments that the claimant could accept in the industry that did not include weekend hours.
- The last board member voted to reverse the decision of the ALJ, finding that both the employer and the claimant had agreed at the time of hire that the claimant could not work weekends.
- The employer did not require working weekends for three-and-a-half years of the claimant’s employment and, therefore, cannot change the employment terms now.
- Most states have a Board of Review that contains 3 or more members. In order for the board to reverse or remand a decision, a majority of the board members need to agree.
- Since they didn’t agree, the only thing they can do is leave the ALJ’s decision as it was, and explain how they individually would have decided.
- In a refusal of work case, sometimes it is necessary to present evidence on whether or not there was any work available that would fit the claimant’s required hours, regardless of whether an offer for those hours have been made. The employer may have to prove that there was not any work available that would have met the claimant’s requirements.
- Keep in mind that when employees advise upon hire that they have limitations to their schedule, and an employer agrees to those limitations, any modification by the employer to that mutual agreement may be considered a change in the agreement of hire. If the employee quits as a result, that could lead to an award of benefits.
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Please remember: Unemployment laws vary from state to state. The results in this case might be different from a case in your state. Also, always consult with your own legal counsel and advisors concerning your specific situation.
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