GABRIEL DIAZ, APPELLANT,
v.
UNEMPLOYMENT APPEALS COMMISSION, APPELLEE

Fla. 5th DCA | 2010-03-26
No. 5D09-1011
ORFINGER, TORPY and LAWSON, JJ., concur.
31 So. 3d 271 Florida District Court of Appeal, Fifth District (2010) Positive Treatment
Cited by 6 cases

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Synopsis

Gabriel Diaz appealed the Unemployment Appeals Commission's denial of his unemployment benefits claim after he quit his job as a prep cook due to severely reduced hours. The court reversed and remanded, finding that the Commission failed to properly consider whether the substantial reduction in hours constituted good cause attributable to the employer.


Holding

The court held that a reduction in hours may constitute good cause attributable to the employer allowing an employee to voluntarily terminate employment and remain eligible for unemployment benefits, and remanded for the referee to consider whether the reduction in Appellant's hours was substantial enough to constitute such good cause.


Headnotes

[1] An employee who voluntarily leaves employment without good cause attributable to the employer is ineligible for unemployment compensation benefits.

[2] Good cause for voluntarily quitting employment includes circumstances that would impel the average, able-bodied, qualified worker to resign.

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Key Quotes

“A reduction in hours or salary may constitute good cause attributable to the employer, which would allow an employee to voluntarily terminate his employment and still remain eligible for unemployment benefits.”

Establishes the legal standard that hour reductions can justify quitting and preserving benefit eligibility

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Facts & Procedural History

Diaz was employed as a prep cook for an employee leasing company beginning in November 2007. His hours were significantly reduced, such that he was wo…

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Opinion of the Court
PER CURIAM.

*272PER CURIAM.

Appellant appeals from a final order of the Unemployment Appeals Commission (“Commission”) denying his request for unemployment compensation benefits. We reverse and remand.

Appellant filed a claim for unemployment compensation benefits after separating from his employment as a prep cook. The claims adjuster denied his claim, finding that “the reason for quitting was not attributable to the employer.” Appellant filed an appeal arguing that his hours were cut so severely that he spent more money getting to work than he actually earned. After hearing, the appeals referee set forth the following findings of fact:

[Appellant] was employed as a prep cook for an employee leasing company beginning in November 2007. [Appellant] informed the employer he was not getting enough hours of work. The employer informed [Appellant] that they were (sic) going to be opening another restaurant and his hours could then be increased. [Appellant] walked out in the middle of his shift on or about May 4, 2008, and quit the position because he believed he was not getting enough hours of work.

The referee then concluded that because Appellant left his employment due to the hours of work, the employer did not cause Appellant to leave. Therefore, the referee determined that Appellant was disqualified from receiving unemployment benefits. The Commission issued its final order affirming the referee’s decision.

An employee who voluntarily leaves his employment without good cause attributable to the employer is not eligible for unemployment compensation benefits. Brown v. Unemployment Appeals Comm’n, 633 So.2d 36, 38 (Fla. 5th DCA 1994) (citing § 443.101(l)(a), Fla. Stat. (1991)). “ ‘Good cause’ for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment.” Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990). A reduction in hours or salary may constitute good cause attributable to the employer, which would allow an employee to voluntarily terminate his employment and still remain eligible for unemployment benefits. Manning v. State Unemployment Appeals Comm’n, 787 So.2d 954, 955 (Fla. 4th DCA 2001).

In Manning, the referee found that the employee quit her job because her hours had dropped to only six hours per day. The referee determined that because the employer did not guarantee a specific number of hours at the time of hire, the employee was not eligible for unemployment benefits. Our sister court noted, however, that the employer’s right to change the conditions of employnent is irrelevant in determining the employee’s entitlement to unemployment compensation. It reversed and remanded for the referee to consider whether the reduction in the employee’s hours was substantial enough to constitute good cause attributable to the employer. Id.

Here, Appellant testified that he separated from his employment based on a significant reduction in his hours. The employer did not dispute Appellant’s testimony that his hours had been cut and he was only working one to two days per week, sometimes for only one hour at a time. Instead, the employer testified that he asked Appellant if he could “hang on ... a little longer? You know, we’re opening this new place. Maybe, you know, you can come over here.” The employer never provided any testimony specific to Appellant’s hours, but simply testified that Appellant was never promised a specified number of hours per week.

*273We reverse and remand for consideration of whether the reduction in Appellant’s hours was substantial enough to constitute good cause attributable to the employer. See also Rivero v. Miami-Dade County, 764 So.2d 850 (Fla. 3d DCA 2000) (reinstating unemployment compensation benefits where employer never disputed employee’s hours were cut).

REVERSED AND REMANDED.

ORFINGER, TORPY and LAWSON, JJ., concur.


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Citator

Cited By

  • Martinez v. Ford Midway Mall, Inc., 59 So. 3d 168 (Fla. 3d DCA 2011)
    …on law, describes that which would drive an average, able-bodied worker to quit his or her job.” Recio, 727 So. 2d at 321; Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So. 2d 827, 829 (Fla. 4th DCA 1973); Diaz v. Unemployment Appeals Comm’n, 31 So. 3d 271, 272 (Fla. 5th DCA 2010). The Referee determined that, although Claimant owed Employer $2,005.00 at the time of separation, the conditions under the Draw Policy were not contrary to the terms of Claimant’s employment. In addition, because Claimant…
  • Ogle v. Fla. Unemployment Appeals Comm'n & DeVoe Auto., 87 So. 3d 1264 (Fla. 1st DCA 2012)
    …age, able-bodied worker to quit his or her job.’ Recio [v. Kent See. Servs. Inc., 727 So. 2d 320, 321 (Fla. 3d DCA 1999)]; Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So. 2d 827, 829 (Fla. 4th DCA 1973); Diaz v. Unemployment Appeals Comm’n, 31 So. 3d 271, 272 (Fla. 5th DCA 2010).” Martinez v. Ford Midway Mall, Inc., 59 So. 3d 168, 171 (Fla. 3d DCA 2011). As a factual matter, the appeals referee concluded that Mr. Ogle established good cause for quitting attributable to his employer. The referee fou…
  • …employee’s terms and conditions of employment, and considered the controlling issue to be whether the change in conditions imposed here was substantial enough to provide the claimant with good cause to leave. See Diaz v. Unemployment Appeals Comm’n, 31 So. 3d 271 (Fla. 5th DCA 2010). In this regard, the Commission set forth its own findings based on additional testimony from the hearing: [T]he record evidence reflects the claimant would be required to work at the new office one to two days every other week.…

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