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

TIMOTHY V BAUHS, Employee

G J'S SUPERVALU, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606139RC


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 issued a decision on January 14, 2002. The employee appealed that decision to the Kenosha County Circuit Court. By Order dated December 2, 2002, the Court remanded this matter back to the commission for further consideration and a new decision. Pursuant to the Court's Order, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about four months for the named employer, a grocery store business in Minneapolis, Minnesota. His last day of work was January 31, 2001 (week 5). He quit work to return to Kenosha, Wisconsin.

The employee worked concurrently at two part-time jobs. His hours of work with the named employer were on weekdays and averaged from 5 to 15 hours a week. His second job was on weekends and was about 15 hours a week. For at least two consecutive weeks his total weekly hours of work, when combining both employers, was less than 20. He quit his work with the named employer because he was not getting enough hours of work.

The issue to be decided is whether the employee quit his work with the named employer for a reason that would allow the immediate payment of unemployment insurance benefits.

Wis. Stat. § 108.04(7)(a) provides:

If an employee terminates work with an employing unit, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the termination occurs and the employee earns wages after the week in which the termination occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

Wis. Stat. § 108.04(7)(g), provides:

Paragraph (a) does not affect an employee's eligibility to receive benefits if the employee:

1. Maintained a temporary residence near the work terminated; and

2. Maintained a permanent residence in another locality; and

3. Terminated such work and returned to his or permanent residence because the work available to the worker had been reduced to less than 20 hours per week in at least 2 consecutive weeks.

The employee contends that he quit within the above-quoted exception to the disqualification for quitting work. The employee argues that in applying Wis. Stat. § 108.04(7)(g), he should be permitted to combine his work with the named employer with his work for a separate employing unit to establish the necessary reduction in hours. The commission disagrees. At issue is whether the employee's quitting fell within any statutory exception to the disqualification under Wis. Stat. § 108.04(7)(a). Wis. Stat. § 108.04(7)(a) is concerned with termination of work with an employing unit. The "work" referred to in Wis. Stat. § 108.04(7)(g) is to that performed for "an employing unit" in Wis. Stat. § 108.04(7)(a). Indeed, where it is intended that concurrent work for more than one employing unit be considered in determining the employee's eligibility for benefits, the statutory exceptions specifically reference such other work or employment. For example, Wis. Stat. § 108.04(7)(o), provides:

Paragraph (a) does not apply to an employee who terminates his or her work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week.

Wis. Stat. § 108.04(7)(n) also deals with concurrent employment and provides:

Paragraph (a) does not apply to an employee who:

1. Terminated work in a position serving as a part-time elected or appointed member of a governmental body or representative of employees;

2. Was engaged in work for an employing unit other than the employing unit in which the employee served under subd.1. at the time that the employee terminated work under subd. 1; and

3. Was paid wages in the terminated work constituting not more than 5% of the employee's base period wages for purposes of benefit entitlement.

Finally, Wis. Stat. § 108.04(7)(q) provides:

Paragraph (a) does not apply if the department determines that an employee, while serving as a member of the U.S. armed forces, was engaged concurrently in other work and terminated that work as a result of the employee's honorable discharge or discharge under honorable conditions from active duty as a member of the U.S. armed forces for a reason that would qualify the employee to receive unemployment compensation under 5 USC 8521.

In addition, if other work or employment relates to the employee's termination from an employing unit referred to in Wis. Stat. § 108.04(7)(a), the exceptions reference such other work or employment. Thus, Wis. Stat. § 108.04(7)(a), does not disqualify an employee who terminates work with an employing unit "to accept a recall to work for a former employer" under Wis. Stat. § 108.04(7)(d); "consisting of not more than 30 hours per week if the employee is otherwise eligible to receive benefits because of the loss of the employee's full-time employment and the loss of the full-time employment makes it economically unfeasible for the employee to continue the part-time work" under Wis. Stat. § 108.04(7)(k); "to accept employment or other work covered by the unemployment insurance law of any state or the federal government, and earned wages in the subsequent work equal to at least 4 times the employee's weekly benefit rate" if the other work offered more favorable conditions under Wis. Stat. § 108.04(7)(L); or an employee who "while claiming benefits for partial unemployment, terminated work to accept employment or other work covered by the unemployment insurance law of any state or the federal government, if that work offered an average weekly wage greater than the average weekly wage earned in the work terminated" under Wis. Stat. § 108.04(7)(p).

The commission interprets Wis. Stat. § 108.04(7)(g) to require the employee to establish that his hours for the employing unit at issue, the named employer, were reduced to less than 20 hours per week in at least two consecutive weeks. The employee's position with the named employer was a part-time position averaging between 5 to 15 hours per week. The employee's hours were not reduced below 20 hours per week. The above statutory exception therefore does not apply to the employee's quitting.

The commission therefore finds that the employee quit his employment within the meaning of Wis. Stat. § 108.04(7)(a), and that he has not established that his quitting fell within any statutory exception to that section.

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits in weeks 5 through 9 of 2001, and until he has earned wages in covered employment performed after the week of quitting equaling at least $356.00

Dated and mailed January 22, 2003
bauhsti . urr : 132 : 1 VL 1039.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc: Attorney Donald J. Bauhs


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


uploaded 2003/01/31