TELICIA L HARRIS, Employee

CASSANDRA HOLLEY ENTERPRISES INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2004 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed April 26, 2005
harrite . usd : 115 : 4  VL 1059.204

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The first question is whether the separation was a quit or a discharge.

The commission agrees with the administrative law judge that the separation was a quit. The employee essentially admits in her testimony that she considered the employment relationship to have been severed when the employer cut her hours. Moreover, there would have been no sound business reason for the owner to initiate the separation since she testified without rebuttal that she considered the employee a good worker and did not want to lose her since she was the only teacher in the infant room who could work certain hours.

The next question then is whether some exception to the quit disqualification would apply here.

The only exception arguably applicable here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). As a general rule, however, 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, Lister v. North Central Wisconsin Rehab. Assoc., UI Hearing No. 98003262WU (LIRC Feb. 22, 1999); Vassar v. United Hospital System, Inc., UI Hearing No. 04604759RC (LIRC Sept. 3, 2004); DeCelis v. Furniture & Mattress Express, UI Hearing No. 04202698EC (LIRC March 11, 2005). Here, the record supports a finding that the center's enrollment had recently declined, and the employer, as a result, had a valid business reason for reducing the employee's hours of work, as well as the hours of work of each of its other teachers, in response to this decline. The employee, who has the burden of proof, did not establish that the reduction and possible rescheduling of her hours would, for example, have prevented her from searching for or accepting other full-time work (see, e.g., Grant v. Cornell Public Schools, UI Hearing No. 01201311EC (LIRC March 7, 2002)) or that her commuting, child care or other expenses/arrangements would not justify continuing to work a reduced number or rearranged schedule of hours for the employer (see, e.g., Garcia v. Impact Alcohol, UI Hearing No. 03609591MW (LIRC Feb. 27, 2004). In fact, the employee would not have known the impact of the reduced hours on her circumstances because she quit almost immediately after the employer provided notice of the reduction. As a result, the good cause attributable exception would not apply.

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uploaded 2005/05/02