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


THOMAS R PARTLOW, Employe

DO IT TOOL & DIE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000279JV


On January 8, 1998, the Department of Workforce Development issued an initial determination which held that the employe's quit was with good cause attributable to the employer. The employer timely filed a request for hearing, and hearing was held on February 11, 1998 in Janesville, Wisconsin before a department administrative law judge. On February 12, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer timely filed a petition for review, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during approximately 11 months as a lathe operator for the employer, a machine shop. His last day of work was December 20, 1997, at which time the employer made him choose between the employer's deductions from his pay for rent versus the employe's loss of employment. The commission agrees with the administrative law judge that the employe's choice of taking the money the employer had deducted for rent, was conduct inconsistent with an intent to continue the employment relationship and, as such, a quit. The statute the adjudicator and the administrative law judge applied to find good cause for the employe's quit, however, is inapplicable in the circumstances present. The commission therefore reverses the appeal tribunal decision.

In the spring of 1997, the employe did not have a place to live. The employer convinced a friend of the employer to rent the employe a nearby apartment. Sometime thereafter, the employe became in arrears on paying his rent. The employer paid the rent for him for October 1997, and obtained repayment from his paychecks. In November the employe, the employer, and the landlord met regarding the employe's paying his rent timely. He orally agreed that the employer could withhold $100 per week from his paychecks to cover the rent. Pursuant to that arrangement the employer paid his rent for November.

In December the employer had not taken any amount from his weekly paychecks until December 19. At that time the employer took $75 out in repayment of a wage advance the employer had given him on December 18 and $150 towards his rent. On December 20, 1997, the employe asked the employer for the $150. He was told that the employer had kept the money for his rent. He demanded the money. He was then told that if he took the money, his employment would be terminated. He chose to take the money and was then advised by the employer that he no longer had a job.

Both the employer and the employe characterized the ending of the employe's employment as a discharge. The employer contended further that he had been discharged for misconduct connected with his employment consisting of excessive absenteeism and tardiness. The commission disagrees. The employer did not tell him that he was being discharged because of his poor attendance. He had the option of continuing to work for the employer, by complying with the employer's conditions for his continued employment, namely, allowing the employer to withhold an amount to cover his rent from the wages due him. His choice not to comply with that condition amounted to a voluntary termination of employment with the employer.

The statutes provide that if an employe terminates his or her employment with an employing unit, the employe's benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employe 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 courts have held that to constitute "good cause" for quitting, the employe's reason must relate to some real, substantial, and unreasonable act on the part of the employer. Worachek v. Koch Brothers, Inc., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). Furthermore, it must be a reason that would justify him in becoming unemployed rather than continue working. Hur v. Radio Shack Tandy Corp., Dane County Circuit Court, Case No. 153-082, June 6, 1977.

The adjudicator and administrative law judge reasoned, in finding good cause for the employe's quit, that Wis. Stat. § 103.455 prohibits payroll deductions by an employer from a worker's check absent written authorization from the worker. In fact the statute disallows deductions, absent written authorization, only "for defective or faulty workmanship, lost or stolen property or damage to property." The title of the section, "Deductions for faulty workmanship, loss, theft or damage" supports this limitation. In this case, though, the deductions had nothing to do with the employe's workmanship, but rather were due to the employe and employer's oral agreement that the employer would withhold enough of the employe's pay to cover the employe's rent, rent at an apartment owned by a friend of the employer, and to whom the employer had vouched the employe.

The commission therefore finds that, in week 51 of 1997, the employe terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), and that this quit was not for a reason constituting an exception to that section. The commission also finds that, due to department error and not due to any action by the employe, the employe was paid benefits for weeks 1 through 14 of 1998, totaling $4052, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c). As indicated above, the statute upon which the adjudicator and administrative law judge relied is inapplicable to the agreement between the employe and employer in this case. Department error includes misapplication of the law, as has occurred here, so recovery of the benefits overpaid is properly waived.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 51 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. Recovery of the overpaid benefits for weeks 1 through 14 of 1998, totaling $4052, is waived. The employe is not required to repay the department; nor will the overpaid benefits be recovered by other means. The appropriate employer accounts will be credited immediately with the overpaid amount.

Dated and mailed: April 29, 1998
partlto.urr : 105 : 6   BR 335.01  VL 1059.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's fact finding. The commission agrees with the administrative law judge's factual findings but, as indicated above, believes the adjudicator and administrative law judge misapplied the statutory payroll deduction prohibition.


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