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


KELLY J. STODOLA, Employee

EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97601990MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 1997, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $804 to the Unemployment Reserve Fund.

Dated and mailed September 2, 1997
stodoke.usd : 132 : 6  VL 1034

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that she voluntarily terminated her employment but not for any reason permitting immediate benefit payment. The employe first argues that the disqualification of Wis. Stat. § 108.04 (7)(a) does not apply because the employe was not notified in writing, prior to the granting of her request for a reduction in hours, of the effect of Wis. Stat. § 108.04 (7m). However, Wis. Stat. § 108.04(7m), as far as notification to the employe is concerned, merely provides that if the employe is notified of that subsection, wages earned by the employe after the reduction cannot be used for requalifying. Since the employe was not notified of the effect of subsection (7m), her wages after the reduction can be used to requalify for benefits. However, whether the employer provides such notice or not does not determine whether the employe's actions in requesting the reduction in hours constitutes a voluntary termination for unemployment purposes. The quit remains effective, although wages may be used to requalify because the employer has not notified the employe of the effect of the subsection.

The employe further argues that she voluntarily terminated her employment within 10 weeks and with the same good cause she would have had for refusing the work. There are two provisions that may provide for benefits if a quitting is done within 10 weeks of beginning work. Under Wis. Stat. § 108.04(8)(d), an employe has 6 weeks after being laid off to seek work substantially in line with the employe's former rate of pay and level of skill. However, in this case while the employe accepted work with the employer within six weeks of being laid off by her other employing unit, she terminated that work after the six week canvassing period had expired. Therefore, she did not have the same good cause for quitting the work that she would have had for refusing that work in the first instance.

The other statutory provision referenced in Wis. Stat. § 108.04(7)(e), is Wis. Stat. § 108.04(9). Wis. Stat. § 108.09 (b), provides that benefits may not be denied for refusing to accept work if the wages, hours, or other conditions of the work are substantially less favorable to the employe then exist for similar work in the employe's labor market. However, based on testimony offered at the hearing by a labor market analyst, the employe's position did not contain conditions which were substantially less favorable to her than existed for similar work in the labor market. Whether a job is substantially less favorable is not based on a comparison between the employe's prior work experience and education, but is based on a survey of what such positions are paid in the employe's labor market and what constitutes the lowest quartile of wages. In this case, the employe was making $5.50 per hour as a receptionist. The labor market analyst testified that the lowest quartile is $5.00 or less.

The employe states in her petition that she wishes to see a complete listing of all companies and businesses used in the labor market analyst's determination. The commission does not have access to such information. The employe can contact the Department of Workforce Development in attempt to obtain the information requested. For the commission's purposes, the testimony offered by the labor market analyst at the hearing was sufficient upon which to make a determination that the wages of the position were not substantially less favorable to the employe than existed for similar work in her labor market. The employe offered no contrary evidence.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: Joseph Stodola


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