In re the Claim of Horton , 97 A.D.2d 610 ( 1983 )


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  • Casey and Levine, JJ.

    dissent and vote to affirm in the following memorandum by Casey, J. Casey, J. (dissenting). We cannot agree that the board erred in finding that claimant had good cause for leaving his employment. Claimant was employed as a salesman on a straight commission basis. The record contains proof that after working five days per week for 22 weeks and earning no more than $700 in commissions during that period, with no commissions in the last three weeks, claimant quit in order to look for other employment which would provide sufficient compensation to support himself and his family. In our view, this proof constitutes substantial evidence to support the board’s finding that claimant had good cause for leaving his employment. While the Unemployment Insurance Law plainly was not intended to serve as a substitute for a minimum wage law, it should not be construed as to preclude the board from granting benefits to claimants who leave employment which, through no fault of their own, pays far less than that necessary to support themselves or their families. In this regard, there is nothing in the record to suggest that claimant’s inability to earn more commissions was due to any lack of effort on his part, and $700 in 22 weeks is patently insufficient to provide even the bare essentials of support. The case of Matter of Sellers (J. W. Mays, Inc. Catherwood) (13 AD2d 204) is distinguishable, for there claimant was hired at a fixed weekly wage with which he later became dissatisfied. Similarly, in Matter of Consentino (Ross) (71 AD2d 1042), claimant was originally hired at a fixed hourly wage and she became dissatisfied with the wage after it was reduced when she failed to qualify for the license necessary to continue at the higher wage. In neither case was there any claim that the wages were insufficient to support claimants and their families. Here, on the other hand, claimant originally accepted employment with no fixed or guaranteed- rate of compensation and after working 22 weeks, discovered that the commissions generated by his work were insufficient to support himself or his family. Nor can we agree with the majority that when adequacy of compensation is the basis of a claimant’s decision to leave his employment, the board is limited to consideration of the criteria in section 593 (subd 2, par [d]) of the Labor Law, for “the list [contained in section 593 (subd 2)] is not exclusive by its very terms” (Matter of Crowe [Dates Laundry Serv. — Corsi], 280 App Div 427, 430, affd 305 NY 699). In Matter of Bus (Bethlehem Steel Corp. Catherwood) (37 AD2d 98, affd 32 NY2d 955), this court held that, as a matter of law, a 15% reduction in wages did not constitute “good cause”, pointing out that reduced wages was not listed in subdivision 2 of section 593 of the Labor Law. But the court further noted (id., at p 102): “To hold otherwise would mean that workers in this State would be subsidized by unemployment insurance benefits when by accepting work for which they are fitted by experience and training they could support themselves” (emphasis added). Where, as here, the board finds that a claimant left his employment not merely because of his dissatisfaction with the wage but, rather, because the compensation was so inadequate that he could not support himself or his family, there is no need for the board to further determine, pursuant to section 593 (subd 2, par [d]) of the Labor Law, whether the compensation was also substantially less favorable than that prevailing for similar work in the locality or was such as tended to depress wages or working conditions. Since the board’s finding that claimant *613had good cause for leaving his employment is supported by substantial evidence and has a rational basis, the decision should be affirmed.

Document Info

Citation Numbers: 97 A.D.2d 610

Judges: Casey, Levine

Filed Date: 10/13/1983

Precedential Status: Precedential

Modified Date: 1/13/2022