Lutz v Health/Tennis Corp of America – 10.112

Lutz v Health/Tennis Corp of America
Digest no. 10.112

Section 29(1)(a)

Cite as: Lutz v Health/Tennis Corp of America, unpublished opinion of the Employment Security Board of Review, issued July 29, 2011 (Docket No. B2010-18037-215694W).

Appeal pending: No
Claimant: Briana L. Lutz
Employer: Health/Tennis Corporation of America, Inc.
Docket no.:  B2010-18037-215694W
Date of decision: July 29, 2011

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HOLDING: Under Section 29(1)(a), a claimant will not be disqualified from receiving unemployment benefits when she leaves unsuitable employment within 60 days after the beginning of that work, as long as she has a benefit year in effect at the time she leaves the unsuitable employment.

FACTS:  Claimant voluntarily quit unsuitable part-time employment after 45 days of work. Claimant had a benefit year in effect at the time. ALJ found that Claimant was not eligible for benefits under Section 29(1)(a)(i) because Claimant did not have a benefit year in effect when she began the employment. Claimant appealed to the Board of Review.

DECISION: ALJ decision is reversed. Claimant is not disqualified for benefits under Section 29(1)(a)(i).

RATIONALE:  The Board of Review reversed the ALJ decision on the grounds that Section 29(1)(a)(i) merely requires a claimant to have a benefit year in effect when he or she leaves employment within 60 days of starting the employment. Contrary to the ALJ’s decision, nothing in the statute or the case law suggest that Claimant must have a benefit year in effect when he or she starts employment.

In his concurring opinion, Board Member Neal A. Young states that the Claimant took advantage of this exception since the burden of showing “unsuitable” employment is much easier to meet then showing “good cause attributable to the employer”. Young is concerned that this poses an inequitable burden on the hiring employer.  Young notes, however, that the Employer still has the option of requesting a redetermination under Section 29(3)(h) where the Employer could assert that the Claimant, while not disqualified, left work under “disqualifying circumstances” (i.e. without good cause attributable to the employer). In such cases, the UIA will transfer the charges for the Claimant’s benefit from the Employer’s account to the nonchargeable benefits account.

Digest Author: Chris Kang
Digest Student-Editor: Nick Phillips
Digest Updated: 8/14