BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

LINDA J OSBORN, Employee

Involving the account of

WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92004141MD


On July 22, 1992, the Department of Industry, Labor and Human Relations (the Department) issued an Initial Determination which held that the employe quit a nonsubject employer, but not for a reason that would allow the payment of benefits. The employe appealed and a hearing was held before an Appeal Tribunal on September 4, 1992. The presiding Appeal Tribunal affirmed the Initial Determination and, on September 9, 1992, issued a decision finding that the employe quit, but not for a reason that constitutes an exception to benefit disqualification under sec. 108.04 (7)(a), Stats. Consequently, benefits were denied. The employe subsequently filed a timely petition for Commission review.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for United Insurance Companies, Inc. ("United"), a life insurance company located in Oklahoma City, Oklahoma. The employe was hired as an administrative assistant and her duties included data entry. She quit on June 18, 1992 (week 25) after four weeks of employment. The issue in this case is whether the employe is eligible for benefits dispite quitting.

The employe quit because United intended to reduce her wage from $7.90 per hour to $5.00 per hour. The employe had been hired at a wage of $7.90 per hour under the assumption that she had a certain amount of data entry experience. The employe denied at the hearing that she told United prior to her hire that she had data entry experience. United assumed that the employe had data entry experience because she indicated on her job application that she had 48 months of "CRT" experience. The Commission understands the reference to "CTR" to be the abbreviation for cathode-ray tube, a component part of a computer display screen. When the employe did not perform to expectations, United's policy owner service manager told the employe she would be demoted to an entry level position that paid $5.00 per hour because she had no data entry experience.

An employe who quits a job is generally ineligible for benefits until he or she requalifies under sec. 108.04 (7)(a), Stats. However, a number of exceptions to the general quit disqualification provision are set out in sec. 108.04 (7)(am) to (o), Stats. Specifically, section 108.04(7)(f), Stats., provides:

"Paragraph (a) does not apply if the department determines that the employe terminated his or her work because the employe was transferred by his or her employing unit to work paying less than two-thirds of his or her immediately preceding wage rate with the employing unit, except that the employe is ineligible to receive benefits for the week of termination and the next four following weeks."

The Commission realizes that the employe's lack of experience gave United what it considered to be a valid business reason for demoting her to a lower paying position. However, the wording in sec. 108.04(7)(f), Stats., is absolute and applies regardless of whether an employing unit has a valid reason for a transfer. After reading the record in its totality, the Commission is persuaded that the employe's demotion to an entry level position involved different duties or a lower level of competence and amounted to a transfer. Two-thirds of the employe's original wage of $7.90 per hour is $5.26 per hour. The employe's demotion to a postion paying $5.00 per hour therefore falls within the parameter set out in sec. 108.04 (7)(f), Stats., and the Commission concludes that the exception is applicable in this case.

The Commission therefore finds that in week 25 of 1992, the employe terminated her work because she was transferred by the employing unit (United) to work paying less than two-thirds of her immediate preceding wage rate with the employing unit, within the meaning of sec. 108.04 (7)(f), Stats.

DECISION

The Appeal Tribunal is reversed. Accordingly, benefits are suspended for the week of quitting (week 25) and the next four following weeks. Thereafter benefits are allowed if the employe is otherwise qualified.

Dated and mailed November 30, 1992
101 : CD 3936  VL 1059.201  VL 1080.269

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


MEMORANDUM OPINION

In a letter to the Department sent before the hearing, United's policy owner service manager stated that she strongly recommended that the employe be denied benefits due to misrepresentation of her skills to obtain employment. However, the hearing record does not indicate that the employe lied about her experience, but rather that whatever CRT experience the employe did have was not applicable to her original position with United. Moreover, even if the employe did exaggerate on her application, that was not why the employment relationship ended. The policy owner service manager did not testify that the employe was discharged for misconduct, but rather that she was demoted because of a lack of experience. Since the record clearly establishes that the employe quit, the question of misconduct, to the extent that there may have been misconduct, is not relevant in this case.

On the other hand, an argument could be made that the pay reduction should be treated as "good cause attributable to the employing unit" which justified the employe's decision to quit. The Commission has in the past held that a substantial wage reduction might give an employe good cause attributable to an employer, especially where it seems clear that the reduction was due to "some fault" on the part of the employer.. Here, however, the employe's lack of experience provides a business justification for the transfer and the lower wages seem commensurate with what the Commission assumes would have been a reduced level of duties in the entry level position. Consequently, the Commission does not believe that sec. 108.04 (7)(b), Stats., applies in this case.

The Commission did not confer with the Appeal Tribunal because it did not reverse on the basis of witness credibility or demeanor. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972). Rather, the Commission reached a different legal conclusion upon essentially the same set of facts as found by the Appeal Tribunal. Specifically, the Appeal Tribunal found that the employe quit, but not for a reason that constituted an exception to the general quit disqualification provision under sec. 108.04 (7)(a), Stats. However, the Commission respectfully disagrees and concludes that the exception to sec. 108.04 (7)(f), Stats., does apply in this case for the reasons set out above.

cc: United Insurance Companies Inc


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/05/29