This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jose M. Gutierrez,
American Masonry Restoration Corp.,
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 989 04
Jose M. Gutierrez,
American Masonry Restoration Corp., 7701 East River Road, Fridley, MN 55432-2458 (respondent)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.
Relator Jose Gutierrez worked on masonry projects with American Masonry Restoration Corporation (American Masonry) for several years. After working on an outdoor project during the fall of 2001, Gutierrez continued working through the winter because indoor work was available. However, American Masonry laid off Gutierrez in November 2002 because work was not available during the winter of 2002-2003. He resumed his work in May 2003 and continued working until November 7, 2003, earning $27.20 per hour. This latter period of employment is the subject of this appeal.
During this period of employment, Gutierrez worked
Although Gutierrez was never guaranteed 40 hours of work per week, he was considered a full-time employee. The nature of the work was often dependant on the weather. At times, without advance notice, Gutierrez did not work a full week because of unfavorable weather conditions.
We review the decision of the
commissioner’s representative rather than that of the unemployment law judge. Tuff v. Knitcraft
Corp., 526 N.W.2d 50, 51 (
As an initial matter, we consider whether Gutierrez quit or
was discharged from his employment. Under
Gutierrez testified that he asked his supervisor to lay him off for the winter because he anticipated that the weather would prevent him from working the number of hours necessary to earn enough to pay for commuting expenses and to support his family. Gutierrez quit shortly after his employer denied the layoff request. Because Gutierrez chose to end the employment at a time when his employer had work available for Gutierrez, the commissioner’s representative correctly determined that Gutierrez quit his employment.
In light of this
conclusion, we next consider whether Gutierrez had a good reason to quit caused
by the employer. Gutierrez argues that his employer’s refusal to
lay him off during the winter when the weather might not permit him to work a
40-hour week constitutes a good reason to quit attributable to the employer
because working fewer than 40 hours prevented him from earning enough money to
pay his household and work-related expenses.
(a) A good reason caused by the employer for quitting is a reason:
(1) that is directly related to the employment and for which the employer is responsible; and
(2) that is significant and would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.
 The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).