CYNTHIA A CLARK-MCFATE, Employee

MANAGEMENT RECRUITERS OF LAKE WISCONSIN INC, 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 approximately two years and four months as an account executive for the employer, a recruiting company. Her last day of work was October 22, 2001 (week 43), when she quit.

The issue is whether the employee quit for a reason which entitles her to immediate benefit payment.

Prior to 2001, the employee experienced success as an account executive for the employer. The employer recruited candidates in the manufacturing industry. The employee was paid on a commission. She earned approximately $40,000 to $42,000 in 2000. She was allowed a flexible schedule with little oversight from her employer. The employer was satisfied with the employee's work performance. However, in 2001 the economy slowed quite a bit and the employer's business was less successful. Many manufacturing companies were now doing their own hiring to save money and were not enlisting the services of a recruitment firm. Based upon her total earnings as of October 2001, the employee anticipated that she would earn approximately $10,000 less in 2001.

The employer is a franchise. The corporate office recognized the slow down and as a result, introduced various videotapes to help the employee and other account executives to increase their contracts. The employee watched the video and did everything else in her power to try and increase contracts, but to no avail. In fact, in June, August and September 2001, the employee did not sign any contracts for the employer. In addition, she only signed one contract in July and October for the employer. This was much less than what she had been able to achieve in the year 2000. The employer was dissatisfied with the employee's work performance. As of the summer of 2001, the employer had lost all of its workers save the employee and an administrative assistant. Since the employer/owner did not work as an account executive, he depended upon the employee to bring in the contracts -- which she was unable to do.

The owner began closely monitoring the employee's work performance. He began giving her weekly reviews and notified her that if she did not improve, she would lose her job. He changed her flexible schedule and told her that she could not leave work early on Fridays anymore. He asked her for suggestions to improve the business, but did not implement them. The owner later told her that she did not provide "constructive, qualified suggestions" on how to improve results and that this was unacceptable. In April of 2001, the owner changed the attendance policy, which beforehand was informal, to a formal policy. The gist of the policy was that if the employee signed contracts and brought in business, then she would be given approval to take some time off. The amount of time off depended on her revenues. This policy also applied to her sick days. The policy provided that if accrued time off days were exceeded, the excess time off would be deducted from the employee's draw and prorated benefits would be deducted as well. In September 2001, the employee was absent for two days due to her father's terminal illness. The employee had not been able to generate enough business as of those dates to be allowed time off per the employer's attendance policy. As a result, the employer deducted two days of prorated draw and two days of insurance premiums from her pay.

The employee decided to quit after the owner again stated that she would be terminated if she did not generate business. The employee contended that she quit her job with good cause attributable to the employer.

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. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justified the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hammer v. DILHR, 92 Wis. 2d 90, 284 N.W.2d 587 (1979).

The employee did not establish that she quit her employment with good cause attributable to the employer. The employee was not allowed as much autonomy when performing her work duties as she had been given in the past. However the employer had a right to manage, even micromanage her work, in an attempt to ensure that all efforts were being made to generate business. Likewise, the employer had a right to change its previously informal attendance policy to a formal one. While the commission acknowledges that it was not the most lucid policy, the employee did not establish that it was an unreasonable policy. The employer's decision to grant time off with pay based on performance was likewise not unreasonable. The employer had adjusted the performance standards downward to account for the slowed economy. It is understandable that the employee found criticisms of her performance, and warnings that she could be discharged for poor performance, stressful. However, she did not demonstrate that the employer's criticisms and warnings were so unreasonable as to justify her decision to terminate her employment.

The commission therefore finds that in week 43 of 2001, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $7,308.00 for weeks 43 through 52 of 2001, and weeks 1 through 8, and 13 through 23 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 43 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $7,308.00 to the Unemployment Reserve Fund.

Dated and mailed June 14, 2002
clarkcy . urr : 132 : 1 :  VL 1005.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission notes that its review was based on the evidence presented under oath at the hearing. The commission did not consider factual assertions made in the petition, or documentation accompanying the petition, that were not made or admitted into evidence at the hearing. The commission does not agree with the employer's assertion in its petition that it was prevented from providing relevant and material evidence. The employee presented the majority of testimony. This is not unusual when an employee quits as the employee bears the burden of presenting evidence to establish that the quitting was within a statutory exception to the quit disqualification. Generally, it takes less time to respond to allegations than to make them initially. The employer was represented at the hearing by an attorney, and was given the opportunity to question the employee and provide testimony on its behalf.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

cc: David J. Grove

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uploaded 2002/06/18