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

JAMES E BUTLER, Employee

ADVANTAGE ADVERTISER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02002243BO


On March 14, 2002, the Department of Workforce Development issued an initial determination which held that the employee quit, 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 April 25, 2002 in West Baraboo, Wisconsin before a department administrative law judge. On May 3, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked just under two years, one day per week, as a bundler/packager for the employer, a newspaper publication business. He quit his employment on February 15, 2001 (week 7), and the issue is whether that quit was for an exception to the general quit disqualification of Wis. Stat. § 108.04(7)(a). The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee originally worked seven hours per week, at $7.00 per hour. He lives approximately 35 miles away from the work, resulting in a 70-mile commute each workday. Given these facts, his gross pay of $49.00 per week, minus $22.75 in commuting costs (at the IRS rate of 32.5 cents per mile), results in a net hourly wage of $3.75. The employee worked this schedule for just under two years.

Approximately four weeks before the employee's quit, the employer reduced the employee's hours from 7 to 4 per week. The employee had the same commuting costs, so at this point his gross pay of $28.00 per day became $5.25 when commuting costs were factored in, or $1.31 per hour. The hours reduction was approximately 43 percent.

Generally, an employee who quits any employment is prohibited from collecting any unemployment insurance benefits unless the quit meets an exception to the general quit disqualification of Wis. Stat. § 108.04(7)(a). The disqualification is "system-wide," that is, it affects all of the employee's employments, and not just the employment quit. The employee's hours went from seven to four per week, however, approximately four weeks before he quit the employment. Given the same commuting costs, his gross pay of $28.00 per day reduces to $5.25, or $1.31 per hour. As indicated above, the hours reduction also is approximately 43 percent, almost half.

An exception to the general quit disqualification is Wis. Stat. § 108.04(7)(b), "good cause attributable to the employing unit." Such cause does not require fault in the sense of wrongful motive on the part of an employer.  It requires only that it have been within the employer's power not to produce the cause which is deemed sufficiently real and substantial to justify the employee's decision to terminate his employment. See Grace Lutheran Foundation, Inc. v. LIRC, Case No. 88CV642 (Eau Claire Cty. Cir. Ct. 7/26/89).  The commission and courts have held that pay reductions between 11 and 30 percent are sufficiently substantial to constitute good cause for a quit of employment pursuant to Wis. Stat. § 108.04(7)(b).  The reduction in the employee's hours translates to an approximately 43 percent reduction in remuneration, which exceeds even the above parameters. Finally, the employer did not appear at the hearing in this matter; there is no evidence in the hearing record as to justification for the reduction in the employee's hours.

The commission therefore finds that, in week 7 of 2002, the employee terminated his employment with good cause attributable to the employing unit, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance if he is otherwise qualified.

Dated and mailed July 5, 2002
butleja . urr : 105 : 1   VL 1005.01  VL 1059.204

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. There are no issues as to witness credibility. The commission concludes, rather, that as a matter of law the employer's almost 50 percent reduction in the employee's hours gave the employee good cause to quit the employment.


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uploaded 2002/07/08