STEVEN P ANDERSON, Employee

MIDELFORT CLINIC LTD MAYO HEALTH SYSTEM, 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 ineligible for benefits beginning in week 6 of 2003, 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 September 29, 2003
anderst . usd : 178 : 1   SW 806

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review, the employee explains the circumstances surrounding his decision to quit and argues that he should be eligible for benefits.

The employee quit this job after one week. He did so because it only paid $8.25 per hour and he had been accustomed to making over $19. He explained that he has significant medical costs and wanted to go to school to complete a degree in accounting so that he could earn a decent wage. He also believed an opportunity might arise with an area business if he could get enrolled in an apprenticeship program. At the time of the hearing, he was not eligible for any approved training program. The issue is whether his reasons entitled him to the immediate payment of benefits.

While the commission understands that the employee's personal circumstances are very difficult, there is no quit exception in the statute, which would allow benefits in these circumstances.

The commission considered two different sections which could apply. First the employee could quit without penalty if the job itself was substantially less favorable than similar work in the labor market. The commission analyzed whether $8.25 per hour is too low a wage for work as a light truck driver, which is the job he quit. Since the bottom quartile for work as a light truck driver in this location is $6.71 per hour, the wage of $8.25 per hour is not substantially less favorable for this type of work. The employee complains it is substantially less than what he is accustomed to earning. Therefore, the commission considered whether the canvassing period and quit same good cause provisions are potentially applicable.

Wis. Stat. § 108.04(8)(d), permits individuals to refuse work within the first six weeks they are unemployed if the work involves a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs. This same principle is applied if the employee accepted the work and then quit it with 10 weeks. In this case, the employee was laid off from his $19 per hour job in week 36 of 2002 and quit the job at issue in week 6 of 2003. He was out of work for 22 weeks before he accepted the job, therefore he was outside of the six week canvassing period.

While the employee was outside the six-week canvassing period when he accepted work for the employer at $8.25 per hour, the commission and the courts have adopted a "sliding scale" for the period after the canvassing period to determine whether the employee meets the good cause standard under Wis. Stat. § § 108.04(7)(e).

Determining such good cause requires weighing the conditions of the general labor market and the duration of the unemployment. Under this sliding scale, as the duration of unemployment increases, employees are required to lower their sights and accept less desirable work. There are two published Court of Appeals cases on this point. In DILHR v. LIRC, 192 Wis. 2d 391, 535 N.W.2d 6 (Ct. App. 1995,) the court affirmed the commission's decision allowing benefits when an employee refused a job paying $6.00 per hour after nine weeks of unemployment from work paying $12.10. In Hubert v. LIRC, 186 Wis. 2d 590, 522 N.W.2d 512 (Ct. App. 1994), the court affirmed the commission's denial of benefits to an individual who was unemployed 16 weeks from a job paying $49,000 per year and refused work paying $23,000. The commission has applied the sliding scale in a string of other cases including Holifield v. P A Staffing Ser Inc. (LIRC, 02/03/00) (good cause to reject $6.50 after making $17 only 12 weeks before), Harnly v. Plant Marketing LLC (LIRC, 04/30/02), (8-10 weeks not an unreasonable time to canvass given extensive labor market).

In the commission's judgment, the employee's 22 weeks of unemployment mean he must lower his sights and accept lower paying work. He no longer has the luxury of choosing his work based on his prior earning history, if he wishes to remain eligible for unemployment. The employee made a reasonable personal decision to pursue other avenues such as schooling and apprenticeship. However, he is not immediately eligible for the payment of unemployment benefits.

Department records indicate that the employee has earned some requalifying wages since he quit his job. As soon as he has earned a total of $1316 in other covered employment since he quit his job, he will again be eligible for unemployment if he is otherwise qualified. When this occurs, or if the employee becomes eligible for approved training as he suggested in his petition, he should contact the department.

cc: State Representative Robin Kreibich

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uploaded 2003/10/03