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

TRACY A PROCHNOW, Employee

EVENFLO CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402138AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2002, if otherwise qualified.

Dated and mailed September 25, 2002
prochtr . usd : 145 : 8  VL 1016  VL 1039.01  VL 1080.26  PC 749 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that it disagrees with the ALJ's decision for a number of reasons. The employer notes that the first page of the appeal tribunal decision states that the employer "did not appear." The employer asserts that it did appear. The synopsis contains testimony by the employer's human resource manager and therefore it is clear that the employer did appear at the hearing. The notation on the front of the appeal tribunal decision is erroneous. However, the commission concludes that the error is harmless.

The employer further contends that the commission has consistently ruled that in order to be eligible for benefits under Wis. Stat. § 108.04(7)(c) a worker must exhaust reasonable alternatives prior to quitting. The employer asserts that the employee in this case failed to exhaust reasonable alternatives. Wis. Stat. § 108.04(7)(c) allows benefits when a worker quits her work because she is unable to do her job with the employer and has no reasonable alternative. However, the appeal tribunal decision found the employee to be eligible for benefits because she met the requirements set forth in Wis. Stat. § 108.04(7)(cm). This exception allows for immediate benefit payment when a worker is hired to work a particular shift, and then quits because of a requirement by the employing unit that she transfer her working hours to a shift occurring at a time that would result in a lack of child care for her minor children. The final requirement is that the employee be able to work and available for full-time work during the same shift that the employee worked in her most recent work with the employer. While she did in fact try the second shift, and therefore it might be argued that second shift was her most recent shift, the department has determined that the exception still applies if the childcare is lost within ten weeks of accepting the shift and the lack of child care is related to the employee's working the new shift. The employee in this case met those conditions and therefore she is eligible for immediate benefit payment.

 


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uploaded 2002/10/04