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

SHARON A POTTS, Employee

CPP PINKERTONS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608385MW


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 approximately two weeks as a security officer for the employer, a supplier of private contract security. Her last day of work was July 30, 2000 (week 32).

On July 22, 2000 (week 30), the employee started a part-time assignment, Saturday and Sunday only, on first shift. The employee worked her first Saturday and Sunday, and her second Saturday. On Sunday, July 30, the employee's supervisor told her to go home prior to the end of her shift. On Tuesday, August 1 (week 32), prior to her next scheduled shift, the employer offered her an assignment on the second shift, at $7.65 per hour. Because she was already working a seasonal part-time job on second shift, she declined the assignment.

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 contended that the employer discharged her when it ended her part-time assignment. While her supervisor sent her home on July 30, the employer's comments were ambiguous at best. The employee had the obligation to determine whether she had been discharged, rather than merely assuming that this was the case. Further, the employer's actions, in offering her a transfer to a different assignment at the same client, prior to her next scheduled shift, indicate that the employer did not discharge her. Thus, the employee's failure to accept the new assignment constitutes a quitting.

As the employee quit, a secondary issue is whether the quitting was for any reason that would permit the immediate payment of unemployment benefits.

Wis. Stat. § 108.04(7)(a) provides that an individual who quits a job will have all of his or her benefit eligibility suspended. That suspension is imposed regardless of whether benefits will be paid by the employing unit that he or she quit or by any other employing unit. The only exceptions are those stated in the law.

Wis. Stat. § 108.04(7)(b) provides an exception to the quit disqualification if the employee quit her work with good cause attributable to the employer. In this case, the employee accepted work with the employer at times that did not conflict with her other job. The employer unilaterally changed the conditions of her employment when it transferred her to work on a different shift.

Her employer offered the employee full-time work as a security officer on second shift at the rate of $7.65 per hour. The employee's labor market includes Milwaukee, Ozaukee, Washington, and Waukesha Counties. For similar work in her labor market area, 61 percent of jobs are full-time work and 22.24 percent of those jobs are on the second shift. The point of pay at which 75 percent of workers earn more and 25 percent of workers earn less is $7.37. In the employee's case, she was unable to accept the assignment, because it was second shift, and she already had a second shift job. Second shift jobs make up less than 25 percent of the suitable work in her labor market. As such, the hours of work were substantially less favorable to the employee than those prevailing for similar work in the locality. Therefore, the employee had good cause to quit when her employer transferred her to work on second shift. See, Raymond Spade v. Abitec Corp (LIRC, January 18, 2001)

The commission therefore finds that in week 35 of 2000 the employee voluntarily terminated her employment 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 reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 32 of 2000, if she is otherwise qualified.

Dated and mailed March 15, 2002
pottssh . urr : 145 : 3 VL 1039.01  VL 1080.26 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing because the commission did not reverse this decision based on a differing assessment of witness credibility and demeanor. Rather the commission bases its decision to reverse on the fact that the labor market report indicated that second shift work comprised less than 25 percent of the suitable work in the employee's labor market.

cc: 
Samuel Butler
David Gust


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