EARL W ENDERS, Employee

METRO CLEAN CORP, Employer

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:

The employee worked for about six weeks as a custodian for the employer, a contract cleaning service. His last day of work was September 7, 2001 (week 36).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee's schedule with the employer called for part-time evening work, Monday through Friday. The employee had a difficult time making it to work on Friday evening because of a full-time, first shift job in which he would frequently be asked to work overtime on Fridays. The employee made a decision to remain at his full-time employment on such occasions. The employee's employment with the named employer ended due to his on-going Friday absences culminating with his absence without notice to the named employer on September 7, 2001. The employee continued at his full-time job until September 19, 2001 (week 38), when his full-time employer notified him that he was laid off. The employee remained laid-off as of the time of the hearing on November 29, 2001 (week 48).

The employee made the decision to place his employment with his full-time employer ahead of his employment with the named employer. The termination of his employment with the named employer was the direct result of his voluntary decision to stay at his full-time position when scheduled to work for the named employer, at times without notice to the named employer. The employee's conduct was inconsistent with an intent to remain employed with the named employer.

Wisconsin Statute § 108.04(7)(o), provides that the quit disqualification does not apply to an employee who terminates his work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if he terminates his work before receiving notice of termination from the position that consists of more than 30 hours per week. The employee was laid off from his full-time position on September 19. There is a nothing in the record to indicate that the employee was aware that he was going to be laid off prior to his separation from the named employer. Finally, there is a presumption that a layoff severs the employment relationship. Hemstock Concrete Products, Inc. v. LIRC, 127 Wis.2d 437 (Ct. App. 1985). There is nothing in the record to rebut such presumption.

The commission therefore finds that in week 36 of 2001, the employee terminated his work with the employer while remaining employed concurrently by a second employer in a position consisting of more than 30 hours of week and before receiving notice of termination from the second employer, within the meaning of Wis. Stat. § 108.04(7)(o).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 36 of 2001, if otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed January 17, 2002
enderea . urr : 132 : 1 : VL 1020

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission agrees with the administrative law judge's finding that the employee quit his employment. However, the facts demonstrate that the employee's quitting did fall within the statutory exception of Wis. Stat. § 108.04(7)(o).

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uploaded 2002/01/25