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

CHERYL D YEKO, Employee

QUAD GRAPHICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03002229WK


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about four years as a legal assistant for the employer, a printing business. Her last day of work was January 24, 2003 (week 4).

During the course of her employment, the employer began downsizing. Around November 2002, the company's founder died and his brother took over running the business. As a result, the downsizing escalated and the legal department (in which the employee worked) began to be phased out. In addition, the employee's father underwent surgery around the same time (in November 2002) and he and the employee's mother moved in with the employee for about a month. The employee was intermittently absent in order to be with her father and to assist her mother with his care. She applied for and was granted family and medical leave to cover her absences. Her father and mother returned to their home in Rockford, Illinois at the end of December 2002, where her father began chemotherapy treatments.

About the time that her parents returned to their home, the employee asked her supervisor if she could work part-time hours so that she could spend time with her father. In a discussion with her supervisor around January 10, 2003, the supervisor and the employee discussed a three-day week for the employee allowing her to continue to receive full benefits. However, the employee did not want to work part-time hours because she did not believe that her job was secure. The employee told her immediate supervisor that she would take a voluntary layoff. The supervisor responded that that would be "perfect." A separation agreement was prepared and signed by the parties that included a "termination date" of January 24, 2003 and four weeks of severance pay and other benefits.

The issue to be decided is whether the employee quit the employment or was discharged by the employer and, in either case, whether she is eligible for unemployment benefits given the circumstances surrounding the ending of the employment.

The commission has previously held that if an employee requests a layoff, and the employer grants that request, the separation is deemed a discharge. The commission's rationale is set forth in Repka v. Mason Shoe Mfg. Co., UI Dec. Hearing No. 02201573EC (LIRC Dec. 23, 2002):

The commission has consistently held that if an employer agrees to lay an employee off at the employee's request, the separation from employment is not a voluntary termination within the meaning of Wis. Stat. § 108.04(7), but instead must be viewed as a situation in which the employee has been discharged. See, Schenk v. Tweed Garot Mechanical Inc., (LIRC, Dec. 4, 2002), Shipman v. Robbins Mfg. Inc. (LIRC, May 31, 2000), Alan M. Greuel v. Jim Greeley Signs & Awnings Inc. (LIRC, June 12, 1998), Miller v. ABCO Building Corp. (LIRC Feb. 5, 1998), Daniel Jandourek v. Rogers Electric (LIRC Dec. 5, 1997). The commission concludes that this rule is applicable here.

The rationale behind this rule, is that in such cases it is ultimately the employer's choice whether to lay the employee off or not. Greuel, supra. This is exactly the situation here. The employer here could have made the choice to continue the employment of the employee, by simply transferring the employee to the telephone order clerk job. Furthermore, it was under no obligation to accede to a request by the employee that she instead be laid off. "A mere request to be laid off . . . does not constitute a severing of the employment relationship because it depends on the employer's acquiescence". Greuel, supra.

For purposes of characterizing the nature of the separation here, the employee was laid off because the employer made the choice -- which it was free to make or not to make -- to acquiesce in the employee's request that she be laid off rather than being continued in employment. Therefore, the separation was not a voluntary termination under Wis. Stat. § 108.04(7)(a), but rather a discharge. Because there is no contention by the employer, and no evidence in the record, that the discharge was for misconduct connected with the employee's employment within the meaning of Wis. Stat. § 108.04(5), there is no basis for finding the separation disqualifying.

The commission therefore finds that in week 4 of 2003, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2003, if she is otherwise qualified.

Dated and mailed August 13, 2003
yekoche . urr : 132 : 1 : MC 626  VL 1007.01

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The facts are not in dispute. The commission has reached a different legal conclusion than the ALJ from the undisputed facts.


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