In re the Claim of Strader

Mar 27, 2008
Versions:49 A.D.3d 1120
853 N.Y.2d 753

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant left his employment as an office manager without good cause. Dissatisfaction with one‘s salary or rate of pay does not constitute good cause for leaving one‘s employment (see Matter of Hughes [Commissioner of Labor], 37 AD3d 966, 966 [2007]; Matter of Luta [Commissioner of Labor], 305 AD2d 786, 787 [2003]). Here, claimant resigned after he learned that he would be paid $12 per hour, rather than time and a half, for any voluntary overtime hours he worked. Inasmuch as claimant admitted that he did not discuss the rate of pay for voluntary overtime at the time he was hired and that no specific rate had been promised to him, his claim that the overtime rate of $12 per hour constituted a substantial change in the terms of his employment is unavailing (cf. Matter of Robert [Sweeney], 239 AD2d 809, 810 [1997]). Furthermore, claimant did not establish that he was entitled to overtime compensation pursuant to the Fair Labor Standards Act (see 29 USC § 213 [a] [1]; 29 CFR 541.200). The record reveals that, as an office manager, claimant earned a salary of $28,000 per year, exempting him from the Fair Labor Standards Act (see 29 USC § 213 [a] [1]; Matter of Conners [Commissioner of Labor], 9 AD3d 703, 705 [2004], lv denied 3 NY3d 609 [2004], cert denied 544 US 1034 [2005]).

Finally, inasmuch as claimant reported that he separated from his employment due to lack of work when, in fact, he had resigned, substantial evidence also supports the Board‘s finding that claimant made a willful misrepresentation to obtain benefits (see Matter of Peters [Commissioner of Labor], 42 AD3d 615, 616 [2007]; Matter of Greco [Commissioner of Labor], 286 AD2d 796 [2001]).

Mercure, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision is affirmed, without costs.