KAREN A KOEHLER, Employee

WAL-MART ASSOCIATES INC, 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 makes the following:

The employee worked more than three years for the employer, a retail department store. The employee separated from her employment on January 24, 2003 (week 4).

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee's husband, using her employee discount card, wrote two checks on insufficient funds (NSF) to Wal-Mart, one on 11/29/02 and another on 12/11/02. These checks were drawn on the husband's checking account, not a joint account, and, as a result, the employee's name did not appear on the checks, she could not write checks on the account, and she did not receive information from the financial institution about the account.

It was the employer's policy to send a letter to an employee informing them of NSF checks they had written or which were written using their discount card; to give the employee 14 days to pay off these NSF checks; and, if they were unable to do so within this 14-day period, to "set something up so they show good faith in paying up the check."

The employee did not receive such a letter from the employer, and the only notice she was provided was on or around 1/16/03 to the effect that she had 24 hours to make good on the checks or she would be terminated.

The employee did not have access during this 24-hour period to sufficient funds to make good on the NSF checks, and was not able, as a result, to comply with the employer's ultimatum. The employee assumed, based on this ultimatum, that she had been discharged. She did not seek to verify this until she received certain information regarding her claim for unemployment benefits on or around 1/30/03.

The employer discharged the employee when the checks had still not been paid off as of 1/24/03. The employee did pay the checks off on or before 1/30/03.

The employee here assumed that she had been terminated and began claiming unemployment benefits without verifying her employment status with the employer. A discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961); Wilson v. Reinke Service, UI Hearing No. 02600504MW (LIRC July 31, 2002)  The courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that he is fired. An employee owes a duty to definitely ascertain what her employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Case No. 116-225 (Dane Co. Cir. Ct., Jan. 5, 1966); Leo N. John v. DILHR & Julian Galst, et al., Case No. 134-448 (Dane Co. Cir. Ct., Feb. 23, 1973); Rupcic v. Wis. Liquor Co., Case No. 150-045 (Dane Co. Cir. Ct., Feb. 21, 1977); Arnold v. RD Roman, Inc., UI Hearing No. 980000732MD (LIRC Nov. 19, 1998); Wilson, supra. The commission concludes that the separation at issue here was a quit.

One of the exceptions to the quit disqualification comes into play when the employee quits with good cause attributable to the employer. Wis. Stat. § 108.04(7)(b). The employer here failed to provide the employee with reasonable notice of the NSF checks for which they were holding her responsible, failed to give her a reasonable amount of time to make good on the checks, and failed to communicate to her or to make available to her alternative payment arrangements once she made it clear that she would not be able to acquire the necessary funds by the employer's deadline. Under these circumstances, to impose on the employee a requirement which she was unable to satisfy, provides good cause attributable to the employer for her quitting. See, e.g., Braatz v. Wayland Academy, UI Hearing No. 98001122BD (LIRC Dec. 29, 1998).

The commission therefore finds that, in week 4 of 2003, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that, in week 4 of 2003, the employee voluntarily terminated employment with the employer, but did so with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed September 29, 2003
koehlka . urr : 115 : 9  VL 1005.01 VL 1007.01

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because this reversal was not based upon a differing view as to the credibility of witnesses or the governing facts, but instead upon a differing interpretation of the relevant law as applied to those facts.

cc: Wal-Mart - Sun Prairie, WI

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uploaded 2003/10/03