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

KIMBERLY M KING, Employee

VAN ZEELAND OIL CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403482AP


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:

Delete the seventh paragraph under the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW and insert therefor the following:

Pursuant to Wis. Stat. § 108.04(7)(e), the quit disqualification of Wis. Stat. § 108.04(7)(a) does not apply if the employee accepted work which could have been refused under Wis. Stat. § 108.04(9) and terminated the employment within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours (including arrangement and number), or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. In the employee's locality, a substantially less favorable rate of pay for work as a cashier/clerk is anything less than $6.94 per hour. The employer's policy provided that any shortages from drive offs would be deducted from the employee's pay. Application of the employer's policy put the employee's rate of pay below $6.94 per hour. The employee quit within the first ten weeks of beginning her employment with the employer. Under Wis. Stat. § 108.04(7)(e), and Wis. Stat. § 108.04(9), the employee quit her employment for a reason that permits immediate benefit payment.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2004, if otherwise qualified.

Dated and mailed December 28, 2004
kingki . umd : 132 : 8  SW 844  VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer has petitioned for review of the appeal tribunal decision that found the employee voluntarily terminated her work with good cause attributable to the employer. The employer states that the ALJ's comment, "oh, that's just shoplifting," indicated that the ALJ had made up her mind. However, the ALJ was questioning the employer as to the difference between a drive off and shoplifting. The commission does not believe that the ALJ's questions indicated that the ALJ was partial.

The commission affirms the ALJ's conclusion that the employee quit for a reason that allows benefit payment. The employer may be following the letter of the law in making the reduction in the employee's rate of pay. However, for unemployment insurance purposes, the commission finds that the employee's quitting was a reasonable reaction to a condition of employment imposed by the employer. The only way the employee could ensure that her rate of pay would not decrease due to a drive off was to record the license number of every customer. Otherwise, if the employee was engaged in watching customers in the store, and waiting on customers in line, and did not make the correct credibility assessment regarding whether a customer was a potential drive off, she risked a reduction in her rate of pay each week. Wis. Stat. § 108.04(9), the "labor standards provision," is applied notwithstanding the employer's reason for applying a condition of employment. That is, the fact that the employee may have engaged in negligent or blameworthy conduct resulting in the reduction in her rate of pay does not preclude application of the labor standards provision.


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