This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-792

Blair L. Jenson,

Relator,

vs.

Peterson Construction Co., Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed January 27, 1998

Affirmed

Lansing, Judge

Minnesota Department of Economic Security

Agency File No. 692UC97

Blair L. Jenson, Box 100A, Badger, MN 56714 (pro se relator)

Peterson Construction Co., Inc., P.O. Box 14239, Grand Forks, ND 55208 (respondent)

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

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Davies, Judge.

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

LANSING, Judge

This appeal challenges the denial of a claim for reemployment insurance benefits under Minn. Stat. § 268.09, subd. 1(a) (1996). Because the record contains no evidence that the employee's termination of his job was for good cause attributable to his employer, we affirm the decision of the commissioner's representative.

FACTS

Blair Jenson worked for Peterson Construction, a commercial building contractor, from October 26, 1996, through December 6, 1996. Jenson testified that he accepted the job as a carpenter earning $11.00 per hour because his seasonal job at an asphalt paving company had finished early and he wanted to "try something different." At the time of hiring, Peterson Construction told Jenson they would like to get in 50 hours per week, weather permitting. The job required Peterson to commute 150 miles daily. When the winter weather conditions reduced the available work to roughly 30 hours per week, Jenson concluded that the job had become unprofitable and quit.

The department claims representative denied Jenson's claim for reemployment insurance benefits. After conducting an evidentiary hearing, the department reemployment insurance judge affirmed the department's determination that Jenson quit his carpenter job voluntarily without good cause attributable to Peterson Construction. The commissioner's representative affirmed the reemployment insurance judge's decision, and Jenson now appeals to this court.

D E C I S I O N

Jenson and Peterson Construction agree that Jenson left his job voluntarily; the issue on appeal is whether Jenson left with good cause attributable to Peterson Construction. An employee who leaves a job voluntarily without good cause attributable to the employer is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a) (1996); see also Jansen v. Peoples Elec. Co., 317 N.W.2d 879, 879-80 (Minn. 1982). When the termination is voluntary, the employee has the burden of proving good cause. Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d. 262, 263 (Minn. 1978). Whether an employee has good cause attributable to the employer is a question of law. Id.

The record demonstrates that Jenson did not meet his burden of proof on the issue of good cause attributable to Peterson Construction. Jenson accepted the job in late October with the understanding that Peterson Construction aimed at 50 hours of work per week, weather permitting. Jenson was hired with the understanding that the available hours depended on weather conditions. With nearly seven years of experience in seasonal asphalt paving work, Jenson should have known that Peterson Construction could not guarantee a consistent number of hours, particularly when hiring winter workers for a construction site on the U.S.-Canada border. While Jenson may have had good personal reasons for quitting his job, it is not good cause attributable to Peterson Construction.

Jenson argues that the commissioner's decision punishes his attempt to try a new job instead of collecting reinsurance benefits upon termination of his seasonal job in the asphalt paving industry. Under Minnesota law, an employee can accept work that is a "substantial departure" from his customary occupation for up to 30 days without being disqualified from reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1 (c) (10) (1996). Thus, Jenson had 30 days to try out his new job with Peterson Construction. By continuing in the job for 35 days, Jenson took himself out of this grace period and lost his eligibility for reemployment insurance benefits. While it seems harsh to deny benefits over a difference of five days in a new occupation, it is within the power of the legislature to impose a final time period. See Minn. Stat. § 268.03 (1996); see generally Corcoran v. P.G. Corcoran Co., 245 Minn. 258, 268, 71 N.W.2d 787, 794 (1955) (discussing legislature's ability to regulate employee-employer relationship under police powers). We affirm the department's determination that Jenson is disqualified from reemployment insurance benefits because he quit his job voluntarily without good cause attributable to the employer.

Affirmed.