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

DON C ENEMUOH, Employee

WISCONSIN PHYSICIANS SERVICE
INSURANCE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000440MD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 1 of 2005, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed July 22, 2005
enemudo . usd : 178 : 4     VL 1016  VL 1039.01   VL 1080.26

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In his petition for commission review, the employee argues that his reason for quitting falls within the exception at Wis. Stat. § 108.04(7)(cm) which provides that an employee shall not be disqualified if he refuses a transfer to another shift occurring at a time when child care would be unavailable, provided he is available during the same shift during which he was most recently working. Therefore, the employee concludes that he is entitled to unemployment benefits. The commission disagrees.

The Administrative Code defines "shift" at § DWD 100.02(55). "'Shift' means the arrangement of hours a claimant is required to work. 'First shift' means a work period which begins and ends between 6 a.m. and 6 p.m." The employee cites the first sentence of the definition in his brief, but deliberately ignores the second where first shift is expressly defined. This definition of first shift is the one most commonly used in the unemployment insurance program. The plain language of Wis. Stat. § 108.04(7)(cm), says that the transfer must be to a different shift and the employee must still be available for work during the same shift he had previously worked. In this case, the arrangement of the hours would change in the transferred position, but not the shift. While it is regrettable, the exception at Wis. Stat. § 108.04(7)(cm) does not cover the employee's situation. His quitting was for valid personal reasons, but not within any exception permitting the immediate payment of benefits.

cc:
Jason Bryan
Angela Thundercloud



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/07/25