DARIN L KAMPSCHROER, Employee

TRANE CO, Employer

On November 21, 2001, the Department of Workforce Development issued an initial determination which held that the employee quit a nonsubject employer but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on December 26, 2001 in La Crosse, Wisconsin before a department administrative law judge. On December 28, 2001, the administrative law judge issued an appeal tribunal decision modifying and affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked for over three months as a laborer for a nonsubject employer, a landscaping company. His last day of work was November 9, 2001 (week 45). The issue to be decided is whether the employee quit the employment or was discharged by the employer and, in either event, whether he is eligible for unemployment benefits given the circumstances surrounding the ending of the employment. The commission concludes that the separation from employment was a layoff and not a quit, and that the employee therefore is not disqualified from benefit eligibility based upon the separation from employment with the landscaping company.

The employee and his wife had a baby on August 15, 2001, following which the employee's wife was on maternity leave until November 1. The employer initially believed the work for the season would end on or about November 1; because of mild weather, the work extended until mid-November. The employee told the employer he would have to reduce his work hours in November, because he had childcare for his infant only for Thursdays and Fridays at that time. The employee and his wife had arranged for full-time childcare for their infant, but that would not begin until January of 2002. With the employer's approval, the employee worked this reduced schedule until November 15, 2001 (week 46), at which time the employer laid the employee off for the season.

A layoff ordinarily is a discharge for unemployment insurance purposes. An exception to this principle can apply where, as here, an employee has voluntarily requested to reduce his or her hours. Wisconsin statute § 108.04(7m) states, in relevant part:

An employee whose employer grants the employee's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of [Wis. stat. § 108.04(7)(a)].

This provision does not apply in the present case, however, for the following reasons. The employee did not request to reduce indefinitely his hours. First, given the nature of the employee's work, landscaping work, and the timing of the request, the request cannot be considered to have been an indefinite one. In fact, given the nature of the employment, it turned out to be of only two weeks' duration, at which time the employment ended because the season ended. At most, it would have been for the months of November and December, following which the employee had full-time childcare for his baby. Under either of these circumstances, the employee did not reduce indefinitely his number of hours.

Second, the decision the commission now reaches is supported both by commission precedent and by the legislative intent of Wis. Stat. § 108.04(7m). In a very recent case, the commission held that a part-time school bus driver who went from her usual summer route schedule to a standby schedule (because of medical appointments for herself and her significant other) did not quit her employment because the reduction was not indefinite or permanent. Benz v. Johnson School Bus Service, Inc., UI Dec. Hearing No. 01606441WB (LIRC October 22, 2001).

The commission has also extensively considered the legislative history of the provision in question, and discussed it in Lipscomb v. St. John's Home of Milwaukee, UI Dec. Hearing No. 98606449MW (LIRC March 30, 1999). The purpose of the statute is to prevent an employee from requalifying for unemployment insurance eligibility (after reducing his hours) and receiving partial benefits based upon reduced employment with the on-going employer, when the partial-benefit entitlement is due to the employee's choice to work reduced hours. Given the end of the season, though, that concern is not present here. The employee's eligibility for benefits is not due to his voluntary reduction in hours, but rather to the end of the season and his layoff both from his employment with the landscaping company and his layoff from employment with his previous employer, the Trane Company.

For all of these reasons, the employee's separation from employment with the landscaping company was a layoff and, as such, a discharge for unemployment insurance purposes. The commission therefore finds that, in week 46 of 2001, the employee was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 48 of 2001, if he is otherwise qualified. (1)

Dated and mailed March 15, 2002
kampsda . urr : 105 : 8  VL 1039.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Indeed, the commission has found the same facts as did the administrative law judge. Rather, as a matter of law the circumstances of this case do not constitute a reduction in hours for an indefinite period, as required by Wis. Stat. § 108.04(7m).

cc: Sod Company

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(1)( Back ) Ordinarily, the employee would be eligible for benefits beginning in the week of discharge, in this case week 46. The employee, in a companion case, has conceded his unavailability for work in weeks 46 and 47 of 2001, however, so his eligibility begins only with week 48 of 2001. 

uploaded 2002/03/18