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

RANDY S CASALENA, Employee

GATEWAY PLASTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02005855WK


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 eligible for benefits as of week 29 of 2002, if otherwise qualified.

Dated and mailed May 21, 2003
casalra . usd : 145 : 1  VL 1005.01 VL 1059.201 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that it is not contested that the employee voluntarily quit his employment. The commission agrees. As such, the employee is not eligible for immediate benefit payment unless his quitting falls within one of the exceptions to quitting. The employer asserts that the employee did not have good cause for quitting. The employer asserts that Wis. Stat. § 108.04(7)(f), which indicates that if a worker is transferred to a job paying less than two thirds of his prior wage rate the employee will be eligible for benefits after a short waiting period, applies in this case. However, in Cornwell Personnel Associates v. LIRC, 175 Wis.2d 537 (Ct. App. 1993), the court of appeals rejected such an argument stating:

"Section 108.04(7)(f), is worded such that it applies only in cases where the employee is transferred to work paying less than two-thirds of his or her immediately preceding wage rate. However, we find no indication that where an employee is transferred to work paying more than two-thirds of the previous wage rate, sec. 108.04(7)(f) necessarily precludes a finding of good cause. On the contrary, we conclude that good cause can exist where an employee is transferred to a job above the two-thirds threshold."

Cornwell Personnel Associates at 549.

The commission has found that a worker has good cause attributable to the employer for quitting, even when the decrease in pay is much less than one third, depending upon the circumstances of the case. One of the first problems with determining the amount of the pay decrease in the present case is that the employer never informed the employee what his wage would be. The employer only indicated that there would be a substantial wage decrease. Even at the hearing the employer did not specify a wage, but merely indicated that the top of the pay range was $19 per hour. Because the employer was offering the employee a new position, and the pay was a matter for the employer to determine, the employer should have been able to provide this critical information to the employee at the time it made the offer, and to the ALJ at the hearing.

The employer further contends that the employee might have made a higher weekly wage than he made in his sample technician position because he might have gotten overtime pay. The fact that he might have gotten overtime is speculative and the commission cannot determine that he would have gotten a higher weekly wage based on the possibility of overtime. The employer correctly points out that the commission has found that a pay cut larger than that offered to the employee in this case might not amount to good cause attributable to the employer for quitting. In Anthony v. The Good Guy's Pub, UI Dec. Hearing No. 90-402092 (LIRC Feb. 14, 1991), the commission determined that the employee did not have good cause attributable to the employer for quitting, but noted that a variety of factors must be considered in reaching such a conclusion. In that case, the employee was being transferred from a restaurant manager to a bartender because she was unable to perform the manager's job in a manner that was satisfactory to the employer. In the present case, the evidence indicated that the employee was a long-time employee who was performing well. The loss of his job was the result of a lack of work, and not because of any problems with his work performance.

Finally, the employer asserts that the decrease in wage was not the real reason the employee quit, but that he quit because he did not want to work for a particular individual. However, the ALJ found credible the employee's assertion that he refused the position because it was a demotion and because the employee could not afford to take a substantial reduction in pay. The commission, after reviewing the record, sees no reason to disagree with the ALJ's credibility determination.

cc: Attorney Robert K. Sholl


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