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

JESSE J WEISE, Employee

SYSCO FOOD SERVICES OF EASTERN WISCONSIN LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403859GB


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately 4 months as a delivery driver for the employer, a food service business. The employee gave two weeks notice of his intention to quit his employment on October 26, 2004 (week 44).

The employee informed the driver supervisor that he was quitting because the "long hours weren't what I was used to -- the job wasn't for me." At the hearing, the employee alleged that he quit because the employer was assigning him to drive hours in excess of the over-the-road truck driving regulations governed by the Federal Motor Carrier Safety Administration (FMCSA).

New federal motor carrier safety regulations were promulgated in January of 2004, adopting new "hours of service." The new regulations provide that a motor carrier driver may drive 11 cumulative hours following 10 consecutive hours off duty. Drivers can actually be on duty for 14 hours with no more than 11 hours of those 14 hours consisting of cumulative driving time. See 49 CFR § 393.5 (a) & (b).

The issue for review is whether the employee is eligible for benefits despite his voluntary termination. Wis. Stat. § 108.04(7)(b) provides that an employee is eligible for the immediate payment of benefits if an employee terminates his or her work with good cause attributable to the employing unit. Good cause includes but is not limited to, "a request, suggestion, or directive by the employing unit that the employee violate federal or Wisconsin law. A request by an employer that its employee violate the law is, as a matter of law, good cause attributable to that employer. See Koziel v. LIRC, Case No. 89-CV-1231 (Dane Cty. Cir. Ct. 10/6/89) as quoted in Steve J. Felper v. National Auto Purchasing, Inc., UI Dec. Hearing No. 96005160BD (LIRC February 27, 1997). However, it remains the case, that the quit must have been due to the conditions alleged; that is, the employee quit because the employer requested, suggested, or directed that the employee violate federal or Wisconsin law. See Eugene M. Keeler v. B & T Mail Service, Inc., UI Dec. Hearing No. 02002630MD (LIRC October 31, 2002).

In this case, unlike the ALJ, the commission is satisfied that the quit was based on the employer's suggestion or request that the employee drive in excess of the relevant federal regulations.

Although the ALJ concluded that the evidence did not establish any request or direction that the employee violate the relevant federal driving regulations as evidenced by the employer's driver's log reports, at least one of the employee's route manifests suggested that the employee drive in excess of the federal regulations. See Exhibit 4. Additionally, Exhibit 7, by the employer's own admission, referenced three incidents in which the employee drove in excess of various the driving regulations.

The commission acknowledges the ALJ's thorough examination of the driver's log reports and appreciates the logic of her conclusion that the employee did not drive in violation of the relevant federal regulations on those specific days. However, the commission reverses the ALJ's decision as a matter of law on the theory that the statute permits the immediate payment of UI benefits if an employee quits even at the suggestion that the employee violate federal or Wisconsin law. Here, the employer admitted to actual instances where the employee did work in excess of the Federal Motor Carrier Safety Regulations and there is proof of at least one instance that the employer scheduled the employee to drive in excess of these regulations as evidenced in Exhibit 4. Under these circumstances, the commission is satisfied that there is sufficient proof that the employer suggested the employee drive in excess of the federal regulations and that the employee's decision to quit over these longs hours relates to the employer's suggestion to drive in excess of these federal regulations.

The commission acknowledges that the employee did not properly keep his driver supervisor apprised of these illegal suggestions or when these occurrences occurred in Exhibit 7. Nonetheless, the law does not require that an employee confront his or her employer about the illegal activity before quitting. See Dennis D. Thompson v. Gerald Hammes Trucking, UI Dec. Hearing No. 89-00743LX (LIRC August 10, 1989).

Consequently, the commission finds that in week 44 of 2004, the employee terminated work with the employing unit with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2004, if otherwise qualified.

Dated and mailed July 13, 2005
weiseje . urr : 135 : 1  VL 1080.12

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission reverses the appeal tribunal decision as a matter of law concluding that the employer suggested that the employee violate federal regulations as evidenced in various exhibits admitted into the hearing record. As a result of this employer suggestion to violate federal regulations, the employee established that his quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b). Because the commission decision does not disturb the ALJ's credibility findings, especially in regard to the employee's testimony regarding quitting over the long hours, a credibility conference was not necessary.


cc: Misha Siner


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