BR-1 #19 S T A T E O F C O N N E C T I C U T
Department of Labor
Employment Security Appeals Division
Board of Review
200 Folly Brook Blvd.
Wethersfield, CT 06l09
IMPORTANTE - TENGA ESTO TRADUCIDO
INMEDIATAMENTE - TIEMPO LIMITADO PARA APELAR
*****Board Case No. and Claimant's Name:
Mario F. Petrozza Appealed from
Referee's determination Case No:
Appealed from Referee's determination Case No:3590-AA-89
SS# XXX-XX-XXXX 2. Date appeal
filed: July 2, 1990
Employer's Name, Address & Reg. No.
3. Appeal filed by: Employer
Hi-G Company, Inc.
c/o UTM Corp.
Lakeside Office Park, Suite 3 4. Date mailed to interested
Wakefield, MA 01880 parties: August 9, 1990
Provisions of the Connecticut General Statutes involved:
CASE HISTORY - SOURCE OF APPEAL:
The Administrator ruled the claimant eligible for unemployment benefits for the week ending November 18, 1989, and notified the employer of its chargeability on November 28, 1989.
The employer appealed the Administrator's decision on December 7, 1989.
Appeals Referee William F. Jones scheduled a hearing of the appeal for February 2, 1990, and the employer failed to attend the hearing.
On February 6, 1990, Referee Jones dismissed the appeal for failure to attend the scheduled hearing and resulting failure to prosecute the appeal.
On February 21, 1990, the employer filed a motion to reopen the Referee's decision.
CASE NO. 838-BR-90 Page 2
On February 23, 1990, Referee Jones granted the motion to reopen, withdrew his decision, and scheduled a new hearing.
Appeals Referee Janice Dombrowski affirmed the Administrator's ruling by a decision issued on June 26, 1990.
The employer appealed the Referee's decision to the Board of Review on July 2, 1990.
Acting under authority contained in Section 31-249 of the Connecticut General Statutes, the Board of Review has reviewed the record in this appeal, including the tape recording of the Referee's hearing.
The Referee ruled that the claimant was discharged for reasons other than repeated wilful misconduct and thus was not disqualified from receiving unemployment compensation benefits. The Referee specifically concluded that the claimant was fired for, at most, a single act of wilful misconduct which is not disqualifying under the Unemployment Compensation Act. We find that the claimant was not guilty of any wilful misconduct.
The record reveals that the claimant was fired for repeatedly refusing to work uncompensated overtime during a three week period. The overtime would have amounted to twenty hours per week and would have lasted for approximately eight weeks. The claimant was an exempt employee, and the employer's policy at the time of discharge provided that exempt employees would not be paid for overtime work. The claimant understood at the time of hire that he might be required to work overtime. However, it was agreed at that time that the claimant's overtime work would be compensated at straight time.
During the three-year period ending October 16, 1988, the claimant worked overtime on thirty-nine weeks and was compensated for each hour worked. With one exception, the claimant was not requested to work overtime between October 16, 1988 and October 16, 1989. On this one occasion, the claimant agreed to accept compensatory time off and worked overtime in order to assist a coworker who was in danger of discharge if he did not complete a project on time.
Where the claimant understands at the time of hire that overtime is mandatory, his subsequent refusal to work overtime generally constitutes wilful misconduct unless the claimant had good cause for the refusal. In the instant case, the claimant did not actually refuse to work overtime. He merely insisted that he be compensated in accordance with his contract of employment as he had been in the past. The employer's unwillingness to compensate the claimant was a violation of the contract of employment that provided good cause for the claimant's refusal. Regardless of the claimant's exempt status or of the employer's newly adopted rule that overtime would no longer be compensated (a rule which was never communicated to the claimant or any other employee), the claimant was not required to accept a lower effective wage than that provided by his contract of employment.
CASE NO. 838-BR-90 Page 3
Since the claimant did not commit any wilful misconduct in the course of his employment, we have no basis for disqualifying him. Accordingly, the Referee's decision is affirmed, and the employer's appeal is dismissed. In so ruling, we modify the Referee's findings of fact in accordance with the foregoing.
BOARD OF REVIEW
Bennett Pudlin, Chairman
In this decision Board member Glenn Williams concurs.
IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO BY SEPTEMBER 10, 1990. SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.