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


STUART R JORENBY, Employee

FIELD SILO & EQUIPMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001152DV


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about nine months as a service helper for the employer, a silo equipment installer. His last day of work was February 13, 1998 (week 7).

On February 9, 1998 (week 7), the employe notified the employer that he was giving his two week notice of quitting. The employe was quitting because he had accepted employment offering a greater weekly wage and more attractive benefits and hours. The employer's president indicated that because it was slow it would be better for the employe to leave a week early.

The employe worked one day for the subsequent employer in week 8, but quit when he was informed that his pay and hours would be cut. He earned $80.00 in week 8 of 1998.

The first issue to be decided is the effective date of the employe's quitting. The employe notified the employer in week 7 that he would be quitting effective in week 9. Therefore, his quit was not effective until week 9. The employe's partial unemployment in week 8 is not related to the fact that he quit his job, but to the fact that the employer would not allow him to continue working until the end of his notice period. The circumstances of this separation fall under the "accelerated quit" principle. Essentially, if an employe gives a future date as a date of quitting, and the employer requires the employe to separate from employment at an earlier date (and the earlier separation itself is not for disqualifying reasons), then the employe is eligible for benefits from the date of separation to the date the employe originally gave as the anticipated quit date. See Hoyt v. Wisconsin Bell Inc., UI Hearing No. 95-602614 (LIRC Feb. 16, 1996); Boehm v. Downtown TV, UI Hearing No. 88-402052 (LIRC Jun. 29, 1989).

In this case, had the employer not "accelerated" the employe's last day of work, the employe would have continued working for the employer in week 8 of 1998. The employer let the employe go early because it was slow and therefore accelerated the separation for a reason which would not disqualify the employe from unemployment benefits.

Effective with week 9 of 1998, the employe's separation became effective. The employe quit his employment because he accepted work that offered the opportunity for a greater weekly wage. However, the law requires that an employe who quits employment to accept more favorable work must requalify for benefits by earning four times the weekly benefit rate that would have been paid had the quitting not occurred. The employe has not met the requalifying requirements.

The employe earned $80.00 in week 8 of 1998. He is therefore entitled to reduced benefits in that week. Benefits are paid by disregarding the first $30.00 in wages and reducing the employe's weekly benefit rate, $215.00, by 67 percent of the remaining amount or $33.50. This leaves a benefit payment of $180.50 which is rounded down to $180.00. See Wis. Stat. § 108.05(3)(a) and Wis. Stat. § 108.05(9).

The commission therefore finds that in week 9 of 1998, the employe voluntarily terminated work with the employer in order to accept employment covered under state or federal unemployment compensation law which offered a greater average weekly wage than that earned in work for the employer, within the meaning of Wis. Stat. § 108.04(7)(L), but that the employe has not earned wages in that subsequent employment equal to at least four times his weekly benefit rate.

The commission further finds that the employer, by its actions in failing to offer continued work until the effective date of the quitting, incurred liability for unemployment benefits for week 8 of 1998.

DECISION

The decision of the administrative law judge is modified as to the effective date of the quit and, as modified, is affirmed. Accordingly, the employe is eligible for reduced benefits in week 8 of 1998 of $180.00. He is ineligible for benefits beginning in week 9 of 1998, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed June 11, 1998
jorenst.urr : 132 : 1 MC 627

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


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