LYNN A BAKALARSKI, Employee

LEXUS OF BROOKFIELD, Employer

On November 21, 2001, the Department of Workforce Development issued an initial determination which held that the employee quit but not a for 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 March 21, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On March 27, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision and the matter is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked approximately five weeks as an accounts payable/receivable clerk for the employer, a car dealership. Her last day of work was October 24, 2001 (week 43), and the issue is whether the subsequent quit by the employee was for a reason constituting an exception to the benefit disqualification of Wis. Stat. § 108.04(7)(a). The commission concludes that it is, and so reverses the appeal tribunal decision.

The employer hired the employee to do accounts payable/receivable work, but the employee missed too much work for the employee to remain in that job. Specifically, the employee missed ten days of work due to various illnesses, including post-traumatic stress disorder and an impending surgery for her husband, who had a diabetic ulcer on his foot which placed him at risk for the loss of the foot. Because of the employee's absences, the employer transferred the employee away from the accounts payable/receivable job to a filing clerk position. The employee refused this position, and the employment relationship thereupon ended.

The accounts payable/receivable job paid $13 per hour; the file clerk position paid $7.50 per hour or, in other words, one half the previous position. Wis. Stats. § 108.04(7)(f) states that the general quit disqualification of (7)(a) is inapplicable if "the employee terminated his or her work because the employee 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." The provision goes on to indicate that there is a time period of ineligibility, the standard four-week disqualification following the week of the termination (and of course there is ineligibility for the week of termination as well). By the express language of the statute, the only inquiry is into the previous job and rate of pay, compared with the new job and rate of pay. The statute contains no "good cause" analysis, as was conducted by the administrative law judge.

Nor does commission and court precedent. The commission has specifically stated that the wording in (7)(f) "is absolute and applies regardless of whether an employing unit has a valid reason for a transfer." Osborn v. Wisconsin Physicians Service Insurance Corp., UI Dec. Hearing No. 92004141MD (LIRC November 30, 1992) (commission expressly found that employer had what it considered to be valid reason for transfer in question). Court precedent also supports the conclusion that the inquiry under (7)(f) does not include justification for the transfer in question. See Peterman-Kufahl Broom Co. v. DILHR, Case No. 124-265 (Dane Cty. Cir. Ct. July 2, 1968). There, the employer transferred the employee from a manager position at $95 per week to a sales position at $50 per week (obviously a reduction of more than a third). In upholding the commission's conclusion of eligibility under (7)(f), the court stated that "the reason for the transfer is immaterial."

The commission therefore finds that, in week 43 of 2001, the employee terminated work with the employer because the employee was transferred by the employer to work paying less than two-thirds of the employee's immediately preceding wage rate with the employer, within the meaning of Wis. Stat. § 108.04(7)(f).

The appeal tribunal decision is reversed. Accordingly, benefits are suspended for the week of quitting and the four following weeks. Thereafter, benefits are allowed if the employee is otherwise qualified.

Dated and mailed July 16, 2002
bakally . urr : 105 : 8  VL 1080.269 

/s/ 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. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. For the reasons stated above, as a matter of law an employer's justification for a transfer is not a factor in analysis under Wis. Stat. § 108.04(7)(f).

cc: Attorney Lynn Ellen Hackbarth

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

uploaded 2002/07/26