Wis.LIRC UC Decision: Floyd, Debra - March 2, 2004 - VL 1034 - Quit new work after trial - "Quit (with) same good cause"; SW 844 - "Labor Standards" - Do wages, hours, etc. of "new work" meet prevailing conditions; what is "new work" - if originally hired for rotating shift work, employee could have refused since it was non-prevailing, so quit within first 10 weeks not disqualifying; if originally hired for 1st shift only, employer's transfer to rotating shift position was new work, was non-prevailing, so her refusal of would not disqualify under � 108.04(9)

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

DEBRA P FLOYD, Employee

US PAPER CONVERTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03402118AP

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 beginning in week 19 of 2003, if otherwise qualified.

Dated and mailed March 2, 2004
floydde . usd : 115 : 1 VL 1034 SW 844

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION
The employee was the least senior trimmer helper in May of 2003. Due to declining business, the employer eliminated the employee's position on or around May 9, 2003, but offered to transfer her to a position in another unit at the same rate of pay. The employee would have been required to rotate between first and second shift in this transfer position.

There is a dispute of fact as to whether the employee was hired to work a rotating shift, or first shift only, in her original trimmer helper position. However, regardless of which version of the facts the commission were to accept, the employee would be eligible for benefits.

Wisconsin Statutes § 108.04(7)(e) states as follows, as relevant here:

(e) Paragraph (a) does not apply if the department determines that the employee accepted work . . . which the employee could have refused under sub. (9) and terminated such work within the first 10 weeks after starting the work..

Wisconsin Statues § 108.04(9) states as follows, as relevant here:

Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

...(b) If the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

The expert testimony provided at hearing establishes that only 4-5% of suitable work in the employee's labor market is rotating shift work.

If, as the employer contends, the employee was originally hired to perform rotating shift work, she could have refused this work since it was non-prevailing, and her quitting within the first 10 weeks of her employment would not disqualify her from receiving benefits pursuant to Wis. Stat. § 108.04(7)(e).

If, as the employee contends, she was originally hired to perform first shift work, the employer's offer of transfer to a rotating shift position would be considered an offer of new work which was non-prevailing, and her refusal of this new work would not disqualify her from receiving benefits pursuant to Wis. Stat. § 108.04(9).

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/03/08