MARY E SMIELEWSKI, Employee

JOHNSON BANK, 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. On July 12, 2002, the commission remanded this matter to the department for additional information about the employee's travel expenses. A further hearing was held on September 16, 2002.

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 about three years as an item processor for the employer, a bank. Her last day of work was January 21, 2002 (week 4), when she quit.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The employee began working part-time for the employer in April of 2001. She worked Monday evenings, approximately three to four hours per week, and earned $10.62 per hour. Around the same time, she began working full-time as an administrative assistant for another employing unit, a plumbing company. The plumbing company permanently laid her off on December 7, 2001 (week 49).

On January 1, 2002 (week 1), the employee moved to Illinois to live with her parents and save on expenses. On January 14, 2002 (week 3), she provided the employer notice that she was quitting, effective in week 5 of 2002, because it was not worth keeping her part-time job, considering the expenses involved with travel to work.

The employer failed to appear at either hearing and no evidence was introduced on its behalf to explain the circumstances surround the employee's separation from employment.

The statutes provide that a worker shall not be disqualified from benefit eligibility due to having voluntarily terminated employment at a position offering no more than 30 hours of work a week, if the employee has lost other full-time employment, and that loss makes it economically unfeasible to continue the part-time work.

Wis. Admin. Code § DWD 132.03(3)(b) provides as follows:

"To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part-time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work."

In this case, the employee quit her employment with the employer effective in week 5 of 2002. According to department records, she reported wages of $37.15 in week 4 of 2002, the week preceding the week in which she quit.

In week 4 of 2002, the employee reported gross wages of $37.15. Her unemployment benefits for that week were $299.00, and her wages and benefits together totaled $336.15. She traveled 57.8 miles each way or 115.6 miles round trip and paid $2.40 for tolls. Using the IRS standard mileage rate of 34.5 cents per mile, her mileage and tolls amounted to $42.28. Her wages and benefits for the week adds up to $336.15, and deducting her travel expenses leaves $293.87. This is less than her weekly benefit rate of $304.00

The commission therefore finds that in week 5 of 2002, the employee voluntarily terminated part-time work consisting of not more than 30 hours per week with the named employer because the loss of the employee's full-time employment made it economically unfeasible to continue this part-time work, within the meaning of Wis. Stat. § 108.04 (7)(k).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2002, if she is otherwise qualified.

If the employer is subject to the contribution requirements of the unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed October 3, 2002
smielma . urr : 145 : 1 VL 1039.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reverses the ALJ's decision because the employee was able to present more accurate mileage and toll expense testimony at the remand hearing.

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uploaded 2002/10/16