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

HEIDI A SMITH, Employee

THE PRUDENTIAL BENRUD REALTY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02202470EC


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 ineligible for benefits beginning in week 42 of 2002, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.


Dated and mailed May 7, 2003
smithhe . usd : 115 : 3  VL 1007  VL 1014 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner



MEMORANDUM OPINION

A separation is a quit, no matter how it is denominated by the parties, when an employee "shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship." Nottelson v. ILHR Department, 94 Wis. 2d 106, 287 N.W.2d 763 (1980) When an employee has an opportunity to maintain the employment relationship but fails to do so, the separation is a quit. See, e.g., Gilkay v. Servicemaster of Stevens Point, UI Hearing No. 95002242WR (LIRC Sept. 28, 1995) The employee acknowledges in her testimony that she had that opportunity while she was in Butler's office but chose not to seize it. The record also supports a finding that the employee was aware what the general nature and intent of the policy document she was being asked to sign was, and, as the ALJ determined, that the employer's version of events in this regard, i.e., that the employer did grant the employee ten minutes to review the policy in her office but that she failed to return to Butler's office as directed after this ten-minute period expired, was more credible.

The fact situation here is similar to that in Beshears v. Intl Cabling Systems, UI Hearing No. 00004185MD (LIRC Dec.18, 2000) where the employer developed a letter of commitment which it directed the employee to sign as a means of showing his commitment to improving aspects of his conduct/performance, and where the employer made it clear that failure by the employee to sign the letter of commitment would result in his separation from employment. The employee refused to sign the letter and the commission concluded that the resulting separation was a quit, noting that the employer had a legitimate basis for the concerns raised in the letter of commitment and citing consistent holdings in Miller v. LIRC, No. 92-CV-2953 (Waukesha Co. Cir. Ct. Jan. 24, 1994); and Burton v. Signicast Corp., UI Hearing No. 00603251MW (LIRC Oct. 23, 2000). Here, the employee was aware that the policy she was being asked to sign related to the employer's future expectations in regard to her use of email addresses which the employer had made available to her, and the record shows that the employer had a legitimate basis for creating such expectations, i.e., the employee had unilaterally changed a password which had rendered certain business-related emails unavailable to the employer.

The commission concludes that the employee quit with no qualifying exception that would permit the payment of benefits.

 


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