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

DOROTHY M COPELAND, Employee

AMERICAN BUILDING MAINTENANCE CO OF ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01610543MW


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 contract janitorial service, for approximately three months. She began working for the employer as a full-time employee on April 10, 2001, on second shift at a pay rate of $7 an hour. In June the employee started working as a fill-in cleaner, at a pay rate of $9 an hour. The fill-in position was not necessarily a second-shift position, but varied with the assignment. The employer's policy requires fill-in workers to call the employer on a daily basis for an assignment.

On July 16, 2001, the employee was offered and accepted a four-day assignment cleaning a store at a shopping mall from 5:00 p.m. until approximately 9:00 p.m. She reported for work on July 16, but was unable to locate the supervisor who was supposed to direct her assignment. The employee left, and on the following day, July 17, she called the employer to explain what had happened. The employer told the employee that somebody else had taken the assignment. The employee then notified the employer that, due to changes in the availability of her childcare, she could no longer work second shift. The employee indicated that she could work first shift, but because she had no childcare available until 8:30 a.m., she would not be able to report to work before 9:00 a.m. The employee asked if the employer had any first-shift work available, and the employer responded that it did, but that this work started at 6:00 a.m. The employee did not contact the employer thereafter because she understood that the only work the employer had for her was early in the morning or on second shift, at which time the employee was unavailable for work.

The issue to decide is whether the employee quit or was discharged and whether she is eligible for benefits based upon that separation.

The facts in this case indicate that the employee quit. The employee could have continued to work for the employer had she been willing or able to work second shift or between the hours of 6:00 a.m. and 9:00 a.m. The employer made it clear that it had assignments for the employee at these times, but the employee chose not to consider them based upon her schedule. Given these circumstances, the commission concludes that the employee was the moving party in the separation.

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. In this case, it does not appear that the employee's quitting falls within any of the enumerated exceptions. The employee was originally hired to work on second shift, and the employer had never agreed to schedule her only between 9:00 a.m. and 5:00 p.m. Thus, the employer did not alter the conditions of her employment, and there is no basis to conclude that the employee's quitting was with good cause attributable to the employer. While there is a statutory exception permitting benefits for an employee who quits a job after being transferred to a new shift for which she lacks childcare, here the employee was not transferred to a different shift, but had the option of continuing to work on the same shift for which she was originally hired or working on first shift. Although the employee may have had a valid personal reason for deciding not to accept such assignments, her quitting did not fall within any statutory exception for which benefits are payable.

The commission therefore finds that in week 29 of 2001, the employee terminated work with the employer, but not within any exception permitting the immediate payment of benefits, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in weeks 40 of 2001 through week 8 of 2002 and weeks 10 through 15 of 2002, in the total amount of $1431, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2001, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay $1431 to the Unemployment Reserve Fund.

Dated and mailed April 24, 2002
copeldo . urr : 164 : 1 VL 1016 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: Although the commission did confer with the appeal tribunal about witness credibility and demeanor, the commission's reversal of the appeal tribunal decision is not based upon a differing assessment of credibility.

Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

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