Wis.LIRC UC Decision: Martin, Becki S.- November 9, 2000 - VL 1016 Domestic And Personal Circumstances; VL 1039.01 - Time - Hours of work; generally; VL 1080.26 - Working Conditions - Transfer - employe, when hired for 3rd shift (8 hrs), was told her shift might be changed; 6 mo. later employer went to 12-hr shifts and she was assigned days; 8 mo. later she was put on 12 hr night (6 PM-6AM) shift; her quitting due to inability to find child care for that schedule was disqualifying notwithstanding � 108.04(7)(cm)

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BECKI S MARTIN, Employee

RAYOVAC OF PORTAGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003665BO

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about fourteen months as a factory worker for the employer, a manufacturer of batteries. Her last day of work was on or about June 15, 2000 (week 25), when she voluntarily terminated that work.

The employee was originally hired for the third shift when she began in April of 1999. At some point she was transferred to the shift she was on at the time of her discharge. During the interview process workers are told that the employer does not guarantee shifts and the worker could be required to switch shifts. All workers are asked whether that is a problem. At the time of the employee's hire the employer was only a three-shift operation. At the end of summer the employer announced that as of October it was going to go into continuous operating mode which would result in twelve-hour crews. The continuous operation expanded the day crews allowing individuals such as the employee to get first-shift positions sooner than they would have had the employer remained on a three-shift operation.

The employee had worked on a twelve-hour day shift for approximately the last six months of her work with the employer. She had arranged childcare, through paid caregivers and family members, to cover those hours. On or about June 14, the employee was informed that she would be required to transfer to a twelve-hour night shift (6 p.m. to 6 a.m.) starting June 19. Based on her previous attempts to secure childcare during night shift hours, she reasonably believed that she would be unable to do so, and therefore chose to quit her work rather than transfer to the night shift. As of the time of her quitting, she would have been able to continue working on the twelve-hour day shift to which she had been assigned most recently.

The issue to be decided is whether the employee voluntarily terminated her employment for any reason permitting the immediate payment of unemployment benefits.

Wis. Stat. � 108.04(7)(a) provides that an employee who voluntarily terminates his or her employment is ineligible for benefits until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate that would have been paid had the quitting not occurred. Wis. Stat. � 108.04(7)(b) through (r) contain the statutory exceptions to the quit disqualification. The only potentially applicable statutory section is Wis. Stat. � 108.04(7)(cm), which provides:

"Paragraph (a) does not apply if an employee is hired to work a particular shift and if the department determines that the employee terminated his or her work as the result of a requirement by his or her employing unit to transfer his or her working hours to a shift occurring at a time that would result in a lack of child care for his or her minor children, provided that the employee is able to work and available for full-time work during the same shift that the employee worked in the employee's most recent work with that employing unit. For purposes of sub. (2)(a), such an employee is not deemed unavailable for work solely for refusing to work a shift other than the one for which the employee was hired."

The commission finds that the employee's quitting does not fall within the statutory exception set forth in Wis. Stat. � 108.04(7)(cm).

The employer's testimony indicated that the employee, while originally hired to work third shift, was not hired for a "particular shift" and was advised that she could be transferred to any of the employer's three shifts. The department's interpretation of the statutory exception is set out in Unemployment Insurance Directive 00-17 issued July 20, 2000, which provides:

"A change in hours or shifts that is a condition of the employment would not be a transfer. One example of this is employees of a printing plant who are hired with the understanding that they will rotate every six months between a day shift and a night shift. This regular rotation between shifts is not a transfer for purposes of section 108.04(7)(cm). Another example is a police cadet or police trainee who is hired with the understanding that he or she may be assigned, at any time, to any shift. This a condition of the employment and any change in schedule is not a transfer."

In this case, the employee was being transferred to the shift that she started on and also had been advised at the time of hire that she could be transferred to different shifts. The employee was hired to work on third shift and was being transferred back to that shift. The employee was hired with the understanding that she could be assigned to any one of the employer's three shifts. As such that the employee be willing and able to transfer shifts was a condition of her employment and not a transfer within the meaning of Wis. Stat. � 108.04(7)(cm).

The commission therefore finds that in week 25 of 2000 the employee voluntarily terminated her employment within the meaning of Wis. Stat. � 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $4,368.00 for weeks 26 through 31 and 35 through 44 of 2000, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. � 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute � 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. � 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. � 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. � 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. � 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. � 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 25 of 2000, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $4,368.00 to the Unemployment Reserve Fund.

Dated and mailed November 9, 2000
martibe.urr : 132 : 6 : VL 1016 VL 1039.01 VL 1080.26

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she had no reason to question the employer's credibility. Accordingly, the commission accepts the employer's testimony that all workers are informed that they can be assigned to any shift the employer is running.

cc: RAYOVAC

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]