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

JAMES T HARPER, Employee

ARROW FINANCIAL SERVICES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000696JF


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:

In the fifth and sixth paragraphs under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" replace "January 11" with "January 12."

Replace the first sentence in the tenth paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

To establish a quitting with good cause attributable to the employer, the employee must show that he quit because of employer conduct that was so substantial, unreasonable and harmful to his interests as to justify him in choosing to become unemployed.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits in weeks 3 through 7 of 2005, and until the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the $329 weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed May 5, 2005
harpeja . umd : 150 : 4  VL 1054.01   VL 1005.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision. The petition did not raise any specific challenges to the hearing or decision. The commission has reviewed the record in this matter for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported.

First, the commission addresses the nature of the separation. At the hearing, the employee contended that he did not quit but was discharged. The statutory concept of voluntary termination is not limited to the situation where an employee says, "I quit," and may, in fact, include situations where the employer has discharged the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). A voluntary termination occurs when "an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship." Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953). Although the employee argued that he was confused regarding the consequences of his refusal to authorize the employer to perform a criminal background check and a student loan credit background check, the commission agrees with the administrative law judge's credibility determination, finding that the employee was clearly told by the employer's human resources manager that he needed to complete the paperwork to continue his employment. As such, his refusal to do so was a clear action inconsistent with the employment and evincing an intent to sever the employment and constituted a quitting. See, Sickler v. St. Francis Home, Inc., UI Dec. Hearing No. 98200933EC (LIRC November 10, 1998)(a worker's refusal to meet the employer's new requirement of certified nursing assistant status was a quitting); Ernst v. Tom-Cin Metals, Inc., UI Dec. Hearing No. 03402091AP (LIRC January 14, 2004)(a worker's refusal to essentially enter into a non-compete agreement was a quitting); and Taube v. Advanced Fiber Products, Inc., UI Dec. Hearing No. 96004227LX (LIRC, March 5, 1997)(a worker's refusal to take a drug test pursuant to a change in employer policy was a quitting).

Next, the general rule when a worker quits is that he or she is ineligible for unemployment insurance benefits unless his or her quitting falls within an exception listed within the statutes. Wis. Stat. § 108.04(7). Under the "good cause attributable" exception, the quitting must be occasioned by some act or omission by the employer that is real and substantial, involving fault, and which justifies the quitting. Kessler v. Industrial Commission, 27 Wis. 2d 398 (1965). At the hearing, the employee testified that he objected to signing the form because it indicated that it was for "new hires" and he had been employed with the employer for five years. However, when the background forms were given to the workers for signature, the employer notified them that the paperwork was necessary for continued employment given the new ownership interest in the employer by Sallie Mae. Given the collection activities of the workers at the employer's business, its requirement that workers authorize a background check for criminal convictions and delinquent student loans was not unreasonable. Further, the employer was implementing this unilateral change in a reasonable fashion; the employer allowed employees who had not been initially honest on their applications regarding criminal history to come forward and, while it indicated that it would not want employees to be in default with their student loans, it further indicated that it would try to work out payment plans with workers if they were. Under these circumstances, the employee's quitting was not with good cause attributable to the employer and it was not within any other exception to allow for immediate benefit payment.

For these reasons, as well as those mentioned by the administrative law judge, the appeal tribunal decision is affirmed as modified.

cc: Attorney Steven W. Zaleski


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