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

CHRISTINA M KRUBSACK, Employee

VALUE VILLAGE DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602915MW


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 primarily as a full-time production worker for the employer, a retail store. On or about January 24, 2005, the employee complained to her immediate supervisor that a co-worker had sexually harassed her. After the supervisor met with the co-worker, the employee complained that the co-worker threatened her and he was again called into the supervisor's office. The employer conducted an investigation and, while the employer was unable to substantiate the employee's complaints, it separated the employee and the alleged offender.

Based upon the employee's concern that another worker was harassing her by staring at her, the employee requested a meeting with the employer's assistant general manager on March 10. On the 10th, both the assistant manager and the general manager met with the employee. The employee requested to be transferred to a different store location. The employer informed her that there were no openings at the requested location but offered her a position at another store location. The employee declined the transfer offer and, instead, asked to work reduced hours, primarily evenings, in order to avoid the two alleged offenders. The employer granted the request. The employee understood that the evening work would be part-time and would include Saturdays.

The employer never provided the employee with any written notice regarding the effect of her reduction in hours on her eligibility for unemployment insurance benefits. The employee opened a claim for unemployment insurance benefits on March 13, 2005 (week 12), noting a reduction in hours. (1)

Wis. Stat. § 108.04(7m) provides as follows:

(7m) VOLUNTARY REDUCTION IN HOURS OF EMPLOYMENT. An employee whose employer grants the employee's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of sub. (7). The wages earned by the employee from that employer for any week in which the reduction requested by the employee is in effect may not be used to meet the requalification requirement provided in sub. (7)(a) applicable to that termination if the employer has notified the employee in writing, prior to the time that the request is granted, of the effect of this subsection. The department shall charge to the fund's balancing account benefits paid to such an employee that are otherwise chargeable to the account of an employer that grants an employee's request under this subsection, for each week in which this subsection applies, if the employer is subject to the contribution requirements of ss. 108.17 and 108.18.

The issue before the commission is whether the employer's granting of the employee's request to indefinitely reduce her hours as of week 12 of 2005 constituted a quitting within the meaning of the above statutory section and, ultimately, whether she is eligible for unemployment insurance benefits.

The employee requested to reduce her hours indefinitely from those that she normally worked. As such, Wis. Stat. § 108.04(7m) applies and the employee's actions are treated as a quitting. In addition to the provision in sub. (7m) that a worker may use the wages in the reduced hour employment to requalify unless the employer "notified the employee in writing, prior to the time that the request was granted, of the effect of" the subsection, the exceptions to the general quitting disqualification, listed in sub. (7), may also affect the employee's eligibility.

While the administrative law judge did not specifically apply the sub. (7) statutory exceptions to the employee's quitting, he allowed the employee's attorney the opportunity to present evidence regarding the circumstances of her reduction request. The employee's argument essentially was that she quit with good cause attributable to the employer based upon its treatment of her in light of her complaints regarding her co-workers. The record does not reflect, and the employee's attorney did not allege, that the petitioner's opportunity to present evidence was improperly limited. (2)

In terms of a quitting with good cause attributable to an employer, it is an employee's burden to introduce evidence to establish that the employer engaged in some act or omission justifying the employee's quitting and involving some fault on the part of the employer, which is real and substantial. Nottleson v. ILHR Dept., 94 Wis. 2d 106, 120 (1980); Kessler v. Industrial Comm., 27 Wis.2d 398, 401 (1965).

In this case, the employer investigated the employee's complaint and, even though it was unable to substantiate her allegations, it transferred to the employee to a work area that minimized her contact with the alleged offender. Thereafter, when she complained about a different worker and asked to be transferred to a different store location, the employer reasonably rejected the proposed transfer due to staffing issues but offered her a transfer to another store location. The employee declined and the employer granted her request to reduce her hours, minimizing her contact with the alleged offenders. Under these circumstances, the record does not support that the employer's actions involved real and substantial fault that justified her quitting. Her quitting was not within the good cause attributable exception; nor was it within any other exception to allow for the immediate payment of unemployment insurance benefits.

The commission therefore finds that in week 12 of 2005, the employee terminated her employment with the employing unit by indefinitely requesting a reduction in hours, within the meaning of Wis. Stat. § 108.04(7m), and that her quitting was not within any exception within the meaning of Wis. Stat. § 108.04(7)(a). The commission further finds that the employer did not notify the employee of the effect of Wis. Stat. § 108.04(7m) and any wages she earned subsequently with the employer could be used for requalification purposes.

DECISION

The appeal tribunal decision is modified to conform with the above findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 12 of 2005 and until four weeks have elapsed since the end of the week of the quitting and the employee has earned wages in covered employment, including those with the employer, performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would not have been paid had the quitting not occurred.

Dated and mailed September 14, 2005
krubsch . urr : 150 : 8  BR 339 VL 1039.09  VL 1054.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Brenda Lewison
Attorney Anna M. Pepelnjak



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


Footnotes:

(1)( Back ) Departmental records reflect a subsequent determination that the employee completely quit her employment in the calendar week ending April 9, 2005 (week 15) and that her week 15 quitting was not within any exception to allow for the immediate payment of unemployment insurance benefits. That determination was not appealed.

(2)( Back ) Although the petitioner's attorney requested the ability to brief the issue of whether the employee's quitting fell within an exception to the general quit disqualification, following the respondent's brief, which dealt with the issue, the petitioner failed to submit a final brief. The commission treats this failure as a forfeiture of the briefing request.

 


uploaded 2005/09/20