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

RANDALL S KLEIN, Employee

HARRY H LONG MOVING STORAGE & EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03403561AP


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 two and one-half years as a truck driver for the employer, a trucking business. His last day of work was on September 12, 2003 (week 37).

On September 11, 2003, the employee received a warning for misuse of the employer's cellular telephone. The employee was told that he was going to be given a three-day suspension. In addition, that for the next 30 days the employer would not pay him time and one-half for overtime. Any overtime hours would be paid at his regular pay rate. The employee wrote on the warning that two weeks of no overtime may be appropriate. He also wrote that he did not authorize any deductions from his payroll.

On September 12, 2003, the employee received his paycheck. At the bottom of the paycheck it stated, "On this week's check, your 10.25 hours of overtime will be paid out to you at your regular rate of $11.50, per your disciplinary action advise to you on 9/11/03." On September 12, the employee submitted his letter of resignation.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The statutes provide that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception.

The employee argued that the employer was required to pay the employee overtime and its failure to do so amounted to good cause attributable to the employer for quitting. The commission disagrees. According to Wis. Admin. Code § DWD 274.04(4), drivers for a motor carrier are exempt from overtime pay.

The employee testified that apart from the overtime, the employer failed to pay him a bonus he had earned. The bonus should have been paid around September of 2002. The employer more or less agreed that it did not pay the bonuses because of poor record keeping. It did not think the employee was eligible for the bonus. However, the employee waited about a year after this incident before quitting. Because the employee waited so long after this incident to quit, he accepted the employer's handling of the situation. Thus the employee cannot rely solely upon this to establish good cause for his quitting.

The employee stated that he was required to work over sixty hours per week. The law suggests that the employer could schedule him for that much work. See Wis. Admin. Code § Trans. 327.05(3).

The employee has not demonstrated that his quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 37 of 2003, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment.

The commission further finds that the employee was paid benefits in weeks 37 and 38 of 2003, totaling $394, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2003, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $394 to the Unemployment Reserve Fund.

Dated and mailed May 27, 2004
kleinra . urr : 145 : 1 VL 1059.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a different assessment of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision as a matter of law.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2004/05/28