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

TONYA VASSAR, Employee

UNITED HOSPITAL SYSTEM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04604759RC


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:

1. The first two paragraphs of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted and the following substituted:

Since December 2, 2002, the employee worked as a radiology clerk, most recently full time on second shift, for the employer, a hospital.

The issue is whether there was a separation of employment, and whether the employee was eligible for benefits during the time period relevant here.

On January 16, 2004, the employee requested paid disability leave to begin on January 15, 2004, and to extend for an indefinite period of time. The employer granted this request.

During January of 2004, in response to business needs, the employer eliminated certain positions and restructured others, including the employee's.

On March 31, 2004, the employer directed a letter to the employee informing her that her 13 weeks of disability leave, the maximum allowed by the employer's policy, would expire on April 14, 2004, and offering her two options if she were unable to return to work by April 15, 2004. These two options were to request an unpaid medical leave for a period of 3 months, or to resign.

On April 5, 2004, the employee requested an unpaid medical leave of absence to commence on April 15, 2004, and to extend for an indefinite period of time. This request was still under review by the employer on April 16, 2004.

On or around April 16, 2004, the employer learned that the employee was released to return to work on April 19. On or around April 19, 2004, the employee's supervisor advised her that her full-time position had been restructured to a part-time position. The employee advised her supervisor that she was not interested in returning to work on a part-time basis. The supervisor asked the employee to put her decision in writing.

The employee then discussed the matter later on April 19 with Linda Gapko, a benefit specialist for the employer, who agreed to put the return-to-work terms in writing and mail them to the employee. The purpose of this agreement was to give the employee additional time to consider whether she would return to her restructured part-time position. If the employee had decided not to do so, she would have been offered the option of taking a personal leave of absence.

The employee initiated her claim for unemployment benefits on April 19, 2004. She indicated to the department that she had been discharged by the employer.

Gapko's letter to the employee detailing the return-to-work terms was dated and mailed on April 23, 2004. This letter stated a response deadline of May 3, 2004, but this deadline was extended by Gapko to May 7, 2004. On May 7, 2004, the employee decided to return to her restructured part-time position. She began working in this position on May 17, 2004.

2. The following is added to the third paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section:

The employee was presumably able and available for work beginning April 19, 2004 (week 17), the date that she was released to return to work by her physician, and her eligibility for benefits would commence in week 17 as a result. However, since the employee was offered part-time work by the employer beginning on April 19, 2004, this eligibility is for partial benefits only by operation of Wis. Stat. § 108.04(1)(a).

Beginning in week 21 of 2004, when she began working part time for the employer, the employee would be eligible for benefits for partial unemployment pursuant to Wis. Stat. § 108.05(3), if otherwise qualified.

The employee was paid benefits in the amount of $516 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and waiver of this overpayment is not merited.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits in weeks 17 through 20 of 2004, if otherwise qualified, but such benefits shall be reduced by the wages she would have earned had she performed all of the work available to her. The employee is eligible for benefits for partial unemployment beginning in week 21 of 2004, if otherwise qualified. She is required to repay the sum of $516 to the Unemployment Reserve Fund.

Dated and mailed September 3, 2004
vassato . umd : 115 : 1   AA 150

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission agrees with the administrative law judge that there was no separation here. It is apparent from the record that, although the employee initially indicated orally to her supervisor on April 19 that she did not intend to return to her position as it had been restructured, i.e., as a part-time, not full-time position, she then indicated to Gapko her desire to have the return-to-work terms reduced to writing and mailed to her, presumably, given her later decision to accept them, for her further consideration. It should be noted in this regard that the employee testified that she had not declined the restructured position on April 19. It should further be noted that, if the employer had concluded that the employee had quit, there would have been no reason for Gapko to have sent out the April 23 letter asking the employee whether she intended to continue in the restructured position.

It is also apparent from the record that, although the 13-week period of the employee's disability leave had expired by April 15, and the employer had not formally granted her an additional period of leave, both the employee and the employer considered the period of leave to have been effectively extended beyond April 15 in order for the issues surrounding the employee's return to work to be resolved.

As a general rule, an employee who experiences a reduction in hours, effected by the employer for a valid business reason, is expected to remain employed and file a claim for partial benefits rather than quit. See, e.g., Lister v. North Central Wisconsin Rehabilitation Associates, UI Hearing No. 98003525WU (LIRC Feb. 22, 1999). The record supports a conclusion that the restructuring of the employee's position, as well as the elimination or restructuring of other positions, was effected as part of a larger reorganization to meet budgetary and other valid business needs of the employer.

Pursuant to Wis. Stat. § 108.04(1)(a), "an employee's eligibility for benefits shall be reduced for any week in which the employee is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work." The employee here was offered part-time work effective April 19, 2004, the date that her physician had released her to return to work, but did not report for such work until May 17, 2004 (week 21), and her benefits would be reduced for weeks 17 through 20 of 2004 by operation of Wis. Stat. § 108.04(1)(a) as a result. The overpayment for weeks 17 through 20 did not result from department error but instead from a differing view as to when the offer of part-time work to the employee was effected, i.e., the commission concluded that this occurred on April 19, 2004, but the administrative law judge concluded that this occurred on May 17, 2004.

Finally, beginning on May 17, 2004 (week 21), the date that the employee commenced working part time for the employer, the employee would be eligible for benefits for partial unemployment pursuant to Wis. Stat. § 108.05(3), if otherwise qualified.


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uploaded 2004/09/08