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

TAMRA K WEISENSEL, Employee

THE FARM TAVERN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03003341MD


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, except that it makes the following modifications:

The first sentence of the fifth paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows:

The employer intended to reduce the employee's weekly hours from an average of 23 hours to an average of 17 hours or less.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 13 of 2003, if otherwise qualified.

Dated and mailed December 19, 2003
weiseta . umd : 115 : 1   VL 1059.204

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The record shows that the employee was hired to work 10-12 hours a week at $6 an hour and did so for the first 16 months of her employment; that, for the last 6 months, she worked an average of 23 hours a week at the same hourly rate; that she received several warnings for unsatisfactory performance; that the employer presented her with another warning on March 24, 2003, relating to her alleged failure to perform cooking duties during happy hour; that the employer, in discussing this warning with the employee, told her that her hours were going to be reduced as a result; that the employee became belligerent during this discussion; that, as a result, the employer told the employee to go home for the rest of the day; and that the employee did not report for work or contact the employee again after March 24.

This separation was a quit -- the employer told the employee to leave for the rest of the day because she had become belligerent. The employee did not understand this to be a discharge, but failed to return to work or contact the employer thereafter. This is action inconsistent with the continuation of the employment relationship.

These types of cases have been decided under two different theories, i.e., one analyzes whether the reduction in hours provided good cause attributable to the employer for the quit because it was arbitrary and unreasonable (Wis. Stat. § 108.04(7)(b)), (1)   and the other analyzes whether the reduction in hours was an offer of substantially less favorable new work which would not disqualify the employee because she had a right to refuse it (Wis. Stat. § 108.04(9)(b)).

The employee prevails under either theory here.

In regard to the first theory, the record supports a conclusion that a 25% or larger reduction (2)  in the employee's hours/earnings was unreasonable. The employer failed to show by competent evidence that the employee ignored customers or refused to cook, the two bases for the employer's decision to reduce her hours by taking her off the happy hour shift. Although the record shows that the employee admitted making a comment on one occasion to a potential customer which caused him to take his business elsewhere and admitted sitting on the counter for a few seconds on occasion, these admissions are insufficient to demonstrate that the employer's reduction in the employee's hours was reasonably justified.

In regard to the second theory, the record supports a conclusion, based on the COED report which comprises exhibit #3, that 6.69% of work similar to the employee's in her labor market consists of part-time work of 17 hours per week or less. As a result, the reduction in her hours from an average of 23 to an average of 17 or less per week, would be an offer of new work with hours substantially less favorable than those prevailing for similar work in the locality, and benefits will not be denied to the employee for refusing to accept this new work by operation of Wis. Stat. § 108.04(9)(b).

The employer argues in its petition that this was not a reduction in hours, just a return to the hours she was originally hired to work. However, there is no indication in the record that, when the employee's hours were increased from 10-12 per week to 20-27 per week 6 months before her separation, this was understood to be a temporary increase, and its duration would reasonably lead to a conclusion that it was not intended to be temporary. See, Hartwig v. General Motors Corp., UI Hearing No. 00005225MD (LIRC Feb. 1, 2001)(new work pursuant to § 108.04(9)(b) includes an offer by an individual's present employer of different terms or conditions of employment, and an employee, who was hired to work 20 hours per week, which was increased to 30-35 and then reduced to 5, was offered new work which was substantially less favorable and his quitting did not as a result disqualify him from receiving UI benefits).


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Footnotes:

(1)( Back ) See, Daniel F. Schensky, d/b/a Schensky builders v. DILHR, Case No. 145-357 (Dane Co. Cir. Ct., May 16, 1975) (even a substantial wage cut will not constitute good cause in most cases unless the cut was arbitrary or unreasonable).

(2)( Back ) See, Butler v. Advantage Advertiser, LLC, UI Hearing No. 02002243BO (LIRC July 5, 2002) (the commission and courts have held that pay reductions between 11 and 30 percent are sufficiently substantial to constitute good cause for a quit of employment pursuant to Wis. Stat. § 108.04(7)(b)).

 


uploaded 2003/12/22