CHRISTOPHER A  NORTON, Employee

INDUSTRIAL TOOLS INC, 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.

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. There is no overpayment.

Dated and mailed March 13, 2003
nortoch . usd : 164 : 1  VL 1059.206 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

In the petition for commission review the employer's attorney argues, without legal citation, that no employing unit is liable to an employee for overtime hours worked by the employee unless those hours were authorized or directed by the employer. The employer's attorney further asserts that the record is completely devoid of evidence that the employee was authorized to work any overtime hours for which he was not paid. These arguments fail. The administrative rule governing payment of overtime does not distinguish between types of overtime hours -- those authorized and those not -- but requires the employer to pay time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week. See Wis. Admin. Code § DWD 274.03.  Moreover, contrary to the assertions made in the petition, the record does indicate that the employer authorized the employee to work overtime. The employer agreed that it paid its workers for a straight 40-hour week, although an employee might put in more or less hours. It is, therefore, clear that the employer did authorize employees to work in excess of 40 hours a week, and the employer acknowledged that it did so without paying them time and a half for those additional hours. While the employer's intention may have been to afford its workers greater flexibility in scheduling, it failed to follow the laws governing the payment of overtime wages, which resulted in the employee receiving less pay than what he was entitled. The commission agrees with the appeal tribunal that this situation, which the employee discussed with the employer prior to submitting his resignation, provided him with good cause for quitting. Accordingly, the appeal tribunal decision is affirmed.

cc: Attorney Ted B. Johnson

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uploaded 2003/03/31