A04-1428

Shawn M. Kaiser,

Relator,

vs.

Adecco USA, Inc.,

Respondent,

Commissioner of Employment and

Economic Development,

Respondent.

Filed March 22, 2005

Affirmed

Hudson, Judge

Department of Employment and

Economic Development

File No. 52004 04

Shawn M. Kaiser, 18601 Collins Street, Apartment D25, Tarzana, California 91356 (pro se relator)

Adecco USA, Inc., 900 Second Avenue South, Suite 270, Minneapolis, Minnesota 55402 (respondent)

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, Minnesota 55101 (for respondent commissioner)

Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Relator challenges the decision by the commissioner’s representative that he was disqualified from receiving unemployment benefits because he had refused an offer of suitable employment without good cause. Because the record reasonably supports the decision of the commissioner’s representative, we affirm.

FACTS

Relator Shawn Kaiser had worked for employer Adecco USA, Inc., a temporary agency, in various temporary assignments since November 19, 2001. These positions involved duties as a general laborer or performing data entry. He earned between $9 and $12 an hour, except that in his most recent position, he provided underwriting support for Wells Fargo Home Mortgage, and he earned $14.50 an hour. After working there for approximately six months, relator was laid off from the Wells Fargo assignment on December 5, 2003, due to budget cuts, and he established an unemployment account on December 7, 2003.

On January 6, 2004, Adecco offered relator a position that was to begin on January 7, 2004, performing data entry at Wells Fargo Home Mortgage. The position would have lasted through June 30, 2004, and paid $11.50 an hour. Relator initially accepted the offer and then declined it later the same day, on the ground that he wanted to make at least $13 an hour.

On February 13, 2004, the department determined that relator was not disqualified from receiving unemployment benefits. Adecco appealed and a hearing was held before the ULJ, which relator did not attend. The ULJ determined that relator was disqualified from receiving unemployment benefits because he had failed without good cause to accept suitable employment when offered.

Relator then filed an appeal with the commissioner’s representative. The commissioner’s representative conducted a de novo review and found that relator failed to accept an offer of suitable employment and was disqualified from receiving unemployment benefits. This appeal follows.

D E C I S I O N

Appellate courts “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). An appellate court may exercise its independent judgment on questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Relator challenges some of the factual findings of the commissioner’s representative, asserting that he in fact worked other jobs in which he made higher wages than indicated in the commissioner’s representative’s order. But relator did not appear at the unemployment hearing and presented no evidence on those facts. This court will not consider evidence not presented at the hearing. See Imprint Tech. v. Comm’r of Econ. Sec., 535 N.W.2d 372, 377 n.1 (Minn. App. 1995). Relator also argues that he missed the hearing because he had not been informed of it. But he did not raise this issue in his appeal to the commissioner’s representative, and he cannot raise the issue for the first time to this court. Id. at 378.

Even if an employee is initially qualified to receive unemployment benefits, he may be disqualified from receiving benefits later if, without good cause, he fails to accept suitable employment when offered. Minn. Stat. § 268.095, subd. 8(a)(2) (2002); Kuether v. Personnel Pool of Minn., 394 N.W.2d 259, 260 (Minn. App. 1986). “Good cause” is defined in relevant part as “a reason that would cause a reasonable individual who wants suitable employment” to fail to accept such employment. Minn. Stat. § 268.095, subd. 8(b) (2002).

The statute has extensive provisions on “suitable employment.” It is defined as “employment in the applicant’s labor market area that is reasonably related to the applicant’s qualifications.” Minn. Stat. § 268.035, subd. 23a(a) (2002). Among the factors considered are “the degree of risk involved to the health and safety, physical fitness, prior training, experience, length of unemployment, prospects for securing employment in the applicant’s customary occupation, and the distance of the employment from the applicant’s residence.” Id. Primary consideration is “given to the temporary or permanent nature of the applicant’s separation from employment and whether the applicant has favorable prospects of finding employment in the applicant’s usual or customary occupation at the applicant’s past wage level within a reasonable period of time.” Id., subd. 23a(b) (2002). “When potential employment is at a rate of pay lower than the applicant’s former rate, consideration must be given to the length of the applicant’s unemployment and the proportion of difference in the rates.” Id., subd. 23a(c) (2002). When job prospects are unfavorable, “employment at lower skill or wage levels is suitable if the applicant is reasonably suited for the employment because of education, training, work experience, or ability.” Id., subd. 23a(b); see also Mastley v. Comm’r of Econ. Sec., 347 N.W.2d 515, 517-19 (Minn. App. 1984) (where an applicant’s previous job paid $10 per hour, he had been unemployed for five months, and he was offered a job in his field for $8.50 per hour, the court held that the wage rate did not render the position unsuitable).

Here, the commissioner’s representative found that the job was comparable in location, duties, and pay to multiple positions that Kaiser had held with the same temporary agency employer in the preceding three years. The representative determined that because Kaiser had made $14.50 for only six months and had earned considerably less prior to that, the job offer for an $11.50-per-hour wage did not constitute good cause to refuse the job. Further, the $11.50 per hour was well within the range of the wages for previous jobs he had held, which ranged from $9 to $12 per hour. Where the job was otherwise suitable, the commissioner’s representative did not err in determining that, under the circumstances, the lower wage did not constitute good cause to refuse the job.

Affirmed.