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

KAREN F HAYES, Employee

VERIZON NORTH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04000016MD


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 ineligible for benefits for weeks 47 through 51 of 2003, and until she has earned wages in covered employment performed after the week of quitting equaling at least four times the $329.00 weekly benefit rate which would have been payable had the quitting not occurred. She must repay $329.00 to the department.

Dated and mailed August 3, 2004
hayeska . usd : 150 : 1   VL 1007.01  VL 1007.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee timely petitioned the appeal tribunal decision arguing that her acceptance of the employer's early retirement as part of a reduction in force effort should not disqualify her for unemployment insurance benefits. Following a review of the record in this matter, the commission disagrees.

"Opting to accept early retirement is a quit of employment." Dreifuerst v. Verizon North, Inc., UI Dec. Hearing No. 04400060FL (LIRC June 18, 2004). The general rule under the Wisconsin Statutes when a worker quits his or her employment is that he or she is ineligible for unemployment insurance benefits unless one of the exceptions listed in Wis. Stat. § 108.04(7) applies. While Wis. Stat. § 108.04(7)(am) provides that the quitting disqualification will not apply if a claimant's separation was in lieu of a suspension or termination by the employer of another worker's position, for this exception to apply the commission requires credible evidence that the employer had definitely elected to terminate or suspend one or more people, and that the employee claiming this statutory section can demonstrate that he accepted termination or suspension in lieu of termination or suspension of some other employee. Berry et al v. LIRC and Dept. of Military Affairs, 213 Wis. 2d 397, 570 N.W.2d 610 (Ct. App. 1997); and Dreifuerst.

The petitioner has not met this burden. In particular, although she may have been concerned regarding her long term job security, when the employer offered this early retirement package, it did not identify a group who would maintain their employment if the petitioner chose to end her employment. Additionally, the petitioner was never been notified that her job was in jeopardy had she not accepted this early retirement program.

Finally, although the petitioner also contends that she should be eligible for unemployment insurance benefits because other workers received unemployment insurance benefits under similar circumstances, "each determination of eligibility is separate and determined on its own merits, with its own appeal rights." Pitt v. Family Dollar Stores of Wisconsin Inc. No. 882, UI Dec. Hearing No. 03611759MW (LIRC April 22, 2004).

For these reasons, as well as those set forth in the appeal tribunal decision, the commission affirms that decision.

cc: Sharon Hankins



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uploaded 2004/08/09