Opinion
November 22, 1961
Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board. Claimant for over 20 years was employed as a restaurant worker on an early schedule of 6:00 A.M. to 3:00 P.M., working for various employers. He was hired by Ladd's Food Shop in downtown Manhattan in the Summer of 1959 for the hours 6:30 A.M. to 3:00 P.M. Due to some changes in business demands the employer told the claimant his hours would be changed to begin at 8:00 or 9:00 A.M. and to terminate at 5:00 or 6:00 P.M. The employer reported to the Division of Unemployment Insurance that "claimant would not be required to do any more work, that the number of hours would be the same, that the reason for change in hours is that there is nothing to be done in claimant's department during the hours of 6-8 A.M." Claimant left the employment September 3, 1959 and filed a claim for unemployment insurance benefits. The Industrial Commissioner made an initial determination ruling claimant was not entitled to benefits because he voluntarily quit his job without good cause. The Unemployment Insurance Appeal Board, affirming a referee, overruled the initial determination and held the claimant had left his job for good cause. The testimony of claimant at the hearing may be summarized by saying that after many years of working very early in the morning he had substantial difficulty in adjusting himself to later hours; he continued to wake up very early in the morning, and he could not get enough sleep, i.e., "I would have dinner and by the time I would go to sleep — it's a highly personal matter — it would be 10:30 or 11 o'clock and I would be up at 4 o'clock just the same". There is no proof, however, that claimant's health was adversely affected by these different hours; nor does claimant himself say this. Thus, we reach the conclusion that this change in hours, reasonably required by the employer's business, and not adversely affecting claimant either in total hours worked or in salary, is not, as a matter of law, "good cause" for leaving the job. (Cf. Matter of Krieger [ Corsi], 279 App. Div. 681; Matter of Stadler [ Corsi], 278 App. Div. 719; Matter of Schmahman [ Corsi], 278 App. Div. 625.) Determination of the Unemployment Insurance Appeal Board reversed and initial determination of the Industrial Commissioner reinstated, without costs. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.