KENDRA M BENNINGER, Employee

SPHERION ATLANTIC RESOURCES LLC, Employer

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:

The employee worked one week in a single assignment for the employer, a staffing agency. The employee resigned in week 29 of 2004 before the completion of this assignment.

The issue is whether the employee's quitting fell within an exception to the quit disqualification.

The employee had previously worked three years as a financial auditor for $17.30 an hour. She was discharged from this position on or around May 6, 2004. She began working for the employer on July 6, 2004, in an assignment as a customer service representative which paid $11 or $11.50 an hour. Her last day of work was July 12, and she submitted her resignation to the employer on July 14, 2004.

Under Wisconsin Statutes § 108.04(7)(a), an employee who voluntarily terminates employment is ineligible for benefits unless the quitting falls within a statutory exception. Wisconsin Statutes § 108.04(7)(e) provides an exception to this quit disqualification if the employee accepted work which could have been refused with good cause under Wis. Stat. § § 108.04(8) and then terminated such employment with the same good cause within the first ten weeks after starting work.

Wisconsin Statutes § 108.04(8)(d] states as follows, as relevant here:

An employee shall have good cause...regardless of the reason articulated by the employee for the failure [to accept suitable work when offered], if the department determines that the failure involved work at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs, and that the employee had not yet had a reasonable opportunity, in view of labor market conditions and the employee's degree of skill, but not to exceed 6 weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay.

While the employee was outside this statutory six-week canvassing period at the time she accepted the assignment with the employer, Wis. Stat. § 108.04(8) has not been interpreted by the commission or the courts, contrary to the administrative law judge's conclusion here, to provide that failure to accept work because of a lower grade of skill or substantially lower pay constitutes good cause only if that failure occurs within six weeks. Instead, a sliding scale approach has been applied to determine whether an employee had good cause to refuse an offer of work after the six-week canvassing period. DILHR v. LIRC, 193 Wis. 2d 391, 401 (Ct. App. 1995). See, also, Harnly v. Plant Marketing LLC, UI Hearing No. 02200050EC (LIRC, April 30, 2002); Lepori v. Spherion Atlantic Workforce LLC, UI Hearing No. 03400828AP (LIRC Sept. 19, 2003).

The employee had been unemployed eight weeks when she accepted the customer service representative assignment with the employer. Not only did this assignment involve a significantly lower grade of skill than her previous financial auditor position, but a 34-36% pay reduction, depending upon whether you accept the employee's testimony that she was paid $11 an hour in this assignment or the employer's testimony that she was paid $11.50 an hour. Given that the employee was only two weeks beyond the end of the canvassing period when she began working in the customer service representative assignment for the employer, the level of skill and pay of this assignment justifies invoking the exception to the quit disqualification set forth in Wis. Stat. § § 108.04(7)(e) and (8)(d). See, e.g., Lepori, supra. (employee would have had good cause for refusing position in seventh week of unemployment which offered 42% pay reduction).

The commission therefore finds that in week 29 of 2004 the employee terminated work with the employer, which she could have refused to accept with good cause, and that she terminated such work with the same good cause and within the first 10 weeks after starting the work, within the meaning of Wis. Stat. § 108.04(7)(e).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2004, if otherwise qualified. As a result of this decision, there was no overpayment of benefits.

Dated and mailed December 17, 2004
bennike . urr : 115 : 4   SW 875.05  VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

 

cc: Spherion (Madison, Wisconsin)

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uploaded 2004/12/20