December 6, 2012
Annette L. Daniels
E. SCOTT BRADLEY, JUDGE
Dear Ms. Daniels:
This is my decision on your appeal of the Unemployment Insurance Appeal Board's denial of your claim for unemployment benefits. You were hired as a sales associate by RJN Enterprises for one of its convenience stores on November 4, 2008. You were hired as a part-time employee and were not guaranteed a certain number of hours per week. The hours you were given were based upon your availability to work. During your first year of employment, you averaged 30 to 38 hours of work per week. After that, you averaged 30 hours per week. Sometime around April 2011, you began to experience issues with your health. Those issues caused you to miss a lot of work, whether in the form of arriving late, leaving early, or just missing a shift. At one point, you were also leaving work early because you had a daycare business in your home. Your employer worked with your scheduling issues, resulting in you being scheduled for fewer hours. All employees at the convenience store must be cross-trained so they can run the store while alone. This includes running the cash register, working in the deli, stocking shelves, and any cleaning that must be done. You were apparently having trouble seeing the cash register. This prevented you from being able to run the cash register properly. Therefore, you could not work by yourself, making it more difficult for your employer to schedule you for work. You are currently scheduled to work Fridays from 6:00 am to 12:00 pm. You believe that you are available to work more hours. When your hours were reduced, you filed a claim for unemployment benefits.
The Claims Deputy, Appeals Referee and Board all ruled that you were ineligible for unemployment benefits because you did not meet the definition of a partially unemployed individual, reasoning that your employer had never promised you a certain number of hours per week.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. On appeal from a decision of the Board, this Court is limited to a determination of whether there is substantial evidence in the record sufficient to support the Board's findings, and that such findings are free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Board's findings are conclusive and will be affirmed if supported by "competent evidence having probative value." The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. Absent an error of law, the Board's decision will not be disturbed where there is substantial evidence to support its conclusions.
An employee may receive unemployment benefits if the employee is totally or partially unemployed. 19 Del.C. § 3302(17) states that:
"Unemployment exists and an individual is "unemployed" in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to such week are less than the individual's weekly benefit amount plus whichever is the greater of $10 or 50% of the individual's weekly benefit amount."
The Department of Labor promulgated Regulation 15 pursuant to the authority granted to it by 29 Del.C. § 8503(7). It states that a "partially unemployed individual" is defined as one who (1) earned less than her weekly benefit amount plus two dollars, (2) was employed by a regular employer, and (3) worked less than her normal customary full-time hours for such regular employer because of a lack of full-time work. The evidence in the record shows that you worked a varying number of hours per week. You worked as many as 30 to 38 hours per week during your first year of employment and as few as six hours per week recently. You did not work normal customary fulltime hours per week. Your employer testified that you were not hired as a full-time employee and that your scheduled hours would be based upon your availability to work. The evidence shows that you were unavailable to work full-time hours whether due to illness or running a day care center. You are not totally unemployed because you are still working each week. You are not partially unemployed because you do not have normal customary full-time hours. Therefore, you are ineligible for unemployment benefits. The Board's finding that you are not totally or partially unemployed is in accordance with the applicable law and supported by substantial evidence in the record.
The decision of the Unemployment Insurance Appeal Board is AFFIRMED.
IT IS SO ORDERED.