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


JOHN J MILLER, Employe

NATIONAL DELIVERY SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96600473MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about two and one-half years, as a newspaper carrier for the employer, a publishing company. His last day of work was October 27, 1995 (week 43).

The employe worked full time for another employing unit while working for the named employer. On October 30, 1995 (week 44), he was discharged from his full-time employment. (1) The employe was absent from work from October 30 to November 3, due to stress associated with the loss of his full-time work.

The employe delivered newspapers for the employer using his own vehicle. A condition of his employment was that he have a car and car insurance. The employe's insurance expired on or about October 19, 1995. In the week ending November 11, 1995, he reported to the employer that he was unable to work because he had no car insurance. The employe was unable to pay both his car insurance and his mortgage and therefore opted to pay his mortgage. The employe's car insurance cost $300 for six months of liability coverage and $600 for six months of full coverage. The employe also had a truck payment of $440 per month. The employe earned $5.40 per hour with the part-time employer and worked 21.25 hours per week, for total weekly wages of $114.75. (2)

The issue to be decided is whether the employe voluntarily terminated his employment for any reason that would permit immediate benefit payment.

Section 108.04 (7)(k), Stats., provides that the quit disqualification of section 108.04 (7)(a), does not apply to an employe who terminates part-time work consisting of not more than 30 hours per week if the employe is otherwise eligible to receive benefits because of the loss of the full-time employment and the loss of the full-time employment makes it economically unfeasible for the employe to continue the part-time work.

Section ILHR 132.03, Wis. Admin. Code sets forth the criteria to be utilized in determining whether continuing part-time work will be "economically unfeasible." Section ILHR 132.03 (3)(b), provides:

"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."

Section ILHR 132.03 (1)(a) defines expenses as "expenses incurred by the claimant to maintain part-time work and includes travel expenses, child care expenses and any other reasonable work-related expenses."

The employe had weekly wages of $114.75 ($5.40 x 21.25). Since as a condition of his employment the employe was required to have a vehicle and insurance, both are expenses related to his work with the employer. The employe's unemployment benefit payment based on those wages would be $195. (3) His expenses include a $110 car payment and $23.08 for car insurance for total expenses of $133.08. The employe's gross wages of $114.75 plus his weekly benefit entitlement of $195 totals $309.75. Subtracting the employe's weekly expenses of $133.08 from the sum of $309.75 leaves a remainder of $176.67. The remainder of $176.67 is less than his full weekly benefit rate of $252. Therefore, under sec. 108.04 (7)(k), Stats., it was economically unfeasible for the employe to continue his part-time work. (4)

The commission therefore finds that in week 44 of 1995, the employe voluntarily terminated part-time work consisting of not more than 30 hours per week with the named employer because the loss of the employe's full-time employment made it economically unfeasible to continue this part-time work, within the meaning of sec. 108.04 (7)(k), Stats.

DECISION

The decision of the administrative law judge is modified and affirmed. Accordingly, the employe is eligible for benefits beginning in week 44 of 1995, if he is otherwise qualified.

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

Dated and mailed: April 10, 1996
millejo.urr:132:1 VL 1039.09

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission has rewritten the appeal tribunal decision in order to clearly apply the law to the facts of the case. The employer maintains in the petition that the appeal tribunal decision is flawed because it does not consider whether the employe received severance or vacation pay from his full-time employer or whether he had a retirement account he could draw from. The employer also questions whether the employe could have made arrangements to borrow the needed money. However, the statute in question does not require an employe to delete his retirement account or borrow money in order to maintain a job. The employe's potential sources of income outside of his income from part-time employment and weekly unemployment benefits are not considered in determining the economic feasibility of continuing in the part- time work. Likewise, the employe's non-work related expenses such as his mortgage, utilities, food, and clothing are not considered in determining the economic feasibility of continuing in the part- time work. Instead, only the expenses associated with that part- time work are considered. The employer conceded that as a condition of employment the employe had to have a vehicle and insurance.

cc: DOW JONES & CO INC


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Footnotes:

(1)( Back ) Department records indicate that the employe was allowed benefits based on his separation from his full-time employment.

(2)( Back ) The employe also testified that he received an answering machine message that he could get 10-15% more if he worked until the end of the year. The employe also received .21 per mile. However, reimbursement for the actual or estimated amount of expenses incurred on a job is not wages for weekly benefit purpose. See Bureau of Benefits Manual, Vol.3, Part VII, Chapter 8, Section IV.(B)(1)g.

(3)( Back ) Under sec. 108.05 (3)(a), Stats., an employe's benefit entitlement for a week of partial unemployment is determined by disregarding the first $30 of wages earned and reducing the weekly benefit by 67% of the remaining amount. The employe's benefit entitlement is therefore determined by subtracting $30 from his wages of $114.75, which leaves $84.75. That sum is multiplied by 67% leaving a remainder of $56.7825. That amount is subtracted from the employe's weekly benefit rate of $252 resulting in benefit payment of $195.21. Pursuant to sec. 108.05 (9), Stat., that amount is rounded down to the next lowest dollar, or to $195.

(4)( Back ) Even considering only the $300 liability insurance expense, the employe's total expenses would be $121.53. His weekly benefit entitlement plus his wages, $309.75, minus his expenses of $121.53 would leave a remainder of $188.22, which is less than his full weekly benefit rate of $252. Finally, considering a 15% increase in total compensation to $131.96 resulting in a benefit payment of $183 leaves a sum of $314.96. Subtracting the employe's expenses of $121.53 from $314.96 leaves a remainder of $193.43, which is less than his full weekly benefit rate of $252.