This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Kathleen M. Haverland,



Thunderbird Hotel & Convention Center Corporation,


Commissioner of Economic Security,


Filed July 21, 1998


Amundson, Judge

Commissioner of Economic Security

File No. 6860UC97

Robert D. Metcalf, Metcalf, Kaspari, Howard, Engdahl & Lazarus, P.A., 333 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416 (for relator)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge.



Relator employee appeals the representative of the commissioner's decision that she was ineligible for reemployment insurance benefits because she had rejected the employer's offer of other positions which, among other differences from her previous position, paid significantly less. Finding that the employer's offer was not for suitable employment, we reverse.


Relator Kathleen M. Haverland began employment as a banquet server with respondent Thunderbird Hotel and Convention Center Corporation (Thunderbird) in 1990. In May 1997, she was laid off by Thunderbird because of seasonal business slow-down. Thunderbird offered her employment as a room service worker and as a coffee shop server. Haverland refused these offers because she didn't feel that the offered positions were comparable to her previous position, particularly in terms of earnings. Haverland sought reemployment insurance benefits.[1] A claims representative denied these benefits because Haverland had rejected Thunderbird's initial offers of employment. Haverland appealed that determination to a reemployment insurance judge, who reinstated Haverland's benefits because the work offered by Thunderbird was unsuitable.

Thunderbird challenged the decision, and a representative of respondent Commissioner of Economic Security found that Haverland was ineligible for reemployment insurance benefits because she had turned down an offer of suitable employment. This appeal followed.


"Whether an employee was properly disqualified from receiving [reemployment insurance] benefits is a mixed question of fact and law." Ballin v. Metropolitan Transit Comm'n, 525 N.W.2d 11, 12 (Minn. App. 1994). The commissioner's findings, viewed in the light most favorable to the decision, should not be overturned if the record reasonably sustains them, while the ultimate question of whether an employee was properly disqualified from receiving benefits is a question of law which is subject to independent review. Id.

Here, Haverland argues that the commissioner's representative improperly determined that she was ineligible for reemployment insurance benefits because he erroneously found that the work offered by Thunderbird was suitable. We agree. The statutes dictate what factors to consider in determining suitability:

In determining whether or not any employment is suitable for a claimant, the commissioner shall consider the degree of risk involved to health safety, and morals, physical fitness and prior training, experience, length of unemployment and prospects of securing local employment in the claimant's customary occupation, and the distance of the available employment from the claimant's residence.

Minn. Stat. § 268.09, subd. 2 (a) (1996).[2] Employment shall not be considered suitable

if the wages, hours, or other conditions of the employment offered are substantially less favorable to the claimant than those prevailing for similar employment in the locality.

Id., subd. 2 (b) (2); Minn. R. 3305.0700, subpt. 4 (B) (1995) (same). Clarifying the statute, the administrative rules provide that a difference in wages, particularly if the claimant has not been unemployed for a long period of time, must be considered in determining the suitability of employment. Minn. R. 3305.0800, subpt. 12 (1995). The rules clarify the issue of wages in determining suitability, stating:

To determine suitability of work in terms of wages the total earnings must be considered. These include the wage rate, hours of work, method of payment, overtime practices, bonuses, incentive payments, and fringe benefits. When the offered work is at a rate of pay lower than the claimant's former rate consideration must be given to the length of the claimant's unemployment and the proportion of difference in the rates. The importance of the difference between the wages offered and the previous rate decreases as the period of unemployment increases.

Id. Given that Haverland was offered and accepted a new banquet server position after approximately three weeks of unemployment, the difference in earnings is especially important. Further, case law supports the premise that a lower wage is a factor to consider in determining whether a job is suitable. Hendrickson v. Northfield Cleaners, 295 N.W.2d 384, 387 n.3 (Minn. 1980); Kuether v. Personnel Pool of Minn., 394 N.W.2d 259, 261 (Minn. App. 1986); Henry v. Dolphin Temp. Help Servs., 386 N.W.2d 277, 281 (Minn. App. 1986).

The difference between the earnings of Haverland's former position and the positions offered is substantial. Her former position of banquet server paid $4.25 an hour, plus 12.8% commission. Haverland's hourly commission averaged over $17, making her total average hourly earnings over $21. Thunderbird offered Haverland work as a room service worker and as a coffee shop server. Those positions paid the same hourly base wage ($4.25), but their tips were significantly lower than the commission Haverland earned as a banquet server. The room service tips, if figured at 12% (which was the percentage given by Thunderbird), average $2.75 per hour, making the average hourly earnings $7. There was evidence that room service workers can sometimes work small banquets, called "breaks," and earn more in tips, so that the total hourly earnings would be as much as $13. As a coffee shop server, the tips (figured at 12%) average $7.66 per hour, making the average hourly earnings almost $12. There was some evidence that tips can be calculated at a 17% rate, based on the rate of credit card tipping. In that case, room service tips would average $3.92 per hour (total average hourly earnings of approximately $8), and coffee shop tips would average approximately $10 per hour (total average hourly earnings of over $14).

Regardless of how the figures are calculated, the earnings of the offered positions are clearly substantially less than those of the banquet server position. The record does not sustain the decision of the commissioner's representative.


[1] Haverland was unemployed for only approximately three weeks before Thunderbird offered her a new banquet server position, which she accepted.

[2] In the 1997 version of Minn. Stat. § 268.09, the definition of suitable employment is slightly modified and found at subd. 15.