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

DEBBIE L CHRISTENSEN, Employee

CHAS LEVY CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606651RC


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 for the employer, a magazine distributor, for about four months as a magazine stocker. Her last day of work was June 21, 2001 (week 25). She was next scheduled to work on June 25 (week 26).

The employee, who worked full-time as a school bus driver, applied for the position with the employer on the advice of a friend, who told her it was a good part-time job and that she would be able to bring her children to work with her. Before her interview, the employee spoke with an employer representative named Marge Childers, who told her she would be able to bring her 14-year old daughter along and that she believed it would be good for the employee's daughter to learn about the job.

The employee was hired by the employer and assigned to stock magazines two evenings a week at a Wal-Mart store. The employee regularly brought her daughter to work with her, and the two of them worked together. The employee was the only one on the employer's payroll, and she in turn compensated her daughter for her assistance out of her own wages. The employer was aware that the employee's daughter did part of the work, and had agreed to add time to the employee's hours to accommodate for the hours her daughter worked. After several months of this arrangement, Ms. Childers notified the employee that the client would no longer let her daughter come to work with her due to liability concerns. The employee asked for a transfer to another store, and was told the employer would let her know if anything opened up. She did not hear from the employer thereafter.

The first question to decide is whether the employee quit or was discharged.

The employee acknowledged that she had the option of continuing to work at the Wal-Mart location, had she been willing to do so without her daughter. However, the employee elected not to go back to Wal-Mart. Under the circumstances, the employee's separation from employment must be viewed as a voluntary quit.

The next question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee was hired with the understanding she could bring her daughter to work, and this arrangement factored into her decision to accept the job. While the employer's client was undoubtedly reasonable in choosing not to let the employee bring her daughter to work with her at its store, the fact remains that the employer had agreed she could do so and the employee had accepted the job in reliance on that agreement. The commission believes that the employer's actions in reneging on its agreement with the employee amounted to a significant and detrimental change in the conditions of her employment, which provided the employee with good cause to quit.

The commission therefore finds that in week 26 of 2001, the employee voluntarily terminated her work with the employer, and that her quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is amended as to the week of issue and, as amended, is reversed. Accordingly, the employee is eligible for benefits beginning in week 26 of 2001, provided she is otherwise qualified.

Dated and mailed December 5, 2001
christd . urr : 164 : 1 VL 1080.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he was not sure he believed the employer committed to letting the employee's daughter come to work, since it seemed unlikely an employer would do so. However, the employer did not appear at the hearing, and the employee's testimony on this point went unrebutted. Lacking any inherent reason to doubt the credibility of the employee's testimony, the commission accepts it as true.


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uploaded 2001/12/07