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

LARRY L WATSON, Employee

DREAM WEAVER EXPRESS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03201402EC


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 nine weeks as a local over-the-road truck driver for the employer, a small trucking business. He was a good worker and his work typically consisted of round trip runs, with some wait time in the middle to prepare for the return trip. His last day of work was on June 30, 2003 (week 27), when he terminated his employment.

The employee quit his employment immediately after being notified that the employer was changing his pay structure from a straight hourly rate to a per mile rate of 30 cents per mile. At the hourly rate, the employee was paid $13.50 per hour.

A labor market analyst testified that the conversion rate between per mile and per hour is based upon 40 miles per hour. Using this conversion rate, the employee's $13.50 per hour rate of pay was equivalent to 33.75 cents per mile. While neither the $13.50 per hour nor the 30 cents per mile rates were prevailing when compared to similar types of work, neither was substantially less favorable than similar types of work.

Wis. Stat. § 108.04(7)(a) provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of the quitting, and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate, unless the quitting was with good cause attributable to the employer or was within some other statutory exception.

The issue to be decided is whether the employee's quitting falls within an exception to allow for immediate payment of unemployment insurance benefits.

While the administrative law judge found that the change in pay structure was not necessarily detrimental to the employee, the commission disagrees. Specifically, given the labor market testimony, the change in pay structure resulted in an 11 percent decrease.

The commission has held that a decrease in pay, even if the wage offered is not substantially less favorable, can amount to good cause attributable to the employer for quitting. Kromenacker v. Adventure Academy, Inc., UI Dec. Hearing No. 03401580GB (LIRC March 4, 2004). Depending upon the circumstances of the case, a quitting with good cause attributable to the employer has been found, even when the pay decrease is much less than one-third. Casalena v. Gateway Plastics, Inc., UI Dec. Hearing No. 02005855WK (LIRC May 21, 2003).

The employer's basis for this negative change to the employee's pay structure was to avoid abuse of its hourly system. However, it conceded at the hearing that the employee was a good worker and offered no evidence to establish that the employee ever abused the wait time. In Stetz v. DILHR, et al., Case No. 136-215, Dane County Circuit Court, February 13, 1973, the court stated:

"(T)he proper approach to whether the employee's voluntarily quitting of his employment was due to 'good cause attributable' to the employer, is to determine if such quitting was a reasonable reaction to some act on the part of the employer. In other words, the 'good cause' relates to the reaction of the employee, and not whether the employer had good cause for the action it did which precipitated the quitting."

The commission concludes that the employee's decision to quit his employment was a reasonable reaction to the employer's negative change in his rate of pay, especially given the short-term nature of his employment and the fact that he had not abused the paid wait time under the hourly pay system.

The commission therefore finds that in week 27 of 2003, the employee terminated work with the employer with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2004, if otherwise qualified.

Dated and mailed April 29, 2004
watsola . urr : 150 : 1  VL 1059.201

/s/ 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 or demeanor. The commission has not reversed the ALJ based on a differing assessment of witness credibility or demeanor but because the evidence of record demonstrates a reduction in compensation.


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


uploaded 2004/05/03