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

MARGE L WILKS, Employee

HEALTHCARE SERVICES GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003718LX


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 about nine years as a laundry aide for the employer, a skilled nursing facility. The employee quit on June 30, 2005 (week 27).

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Generally, when an employee voluntarily terminates his or her employment, the employee is ineligible for unemployment insurance until he or she meets certain requalifying requirements. There are exceptions to this disqualification, the relevant one in this case being "good cause attributable to the employing unit," Wis. Stat. § 108.04(7)(b).

The employee's employer grew dissatisfied with the performance of the housekeeping crew, of which the employee was considered a part. On December 17, 2004, the employee and other co-workers were informed that a contractor had been hired to take over management of the housekeeping duties at the nursing home and that she now worked for the contractor. Anyone who did not want to continue working was offered a layoff; the employee declined that offer. When she worked for the nursing home, she had eye care and dental care benefits as well as a 401k retirement benefit. Under the new regime she lost all of those benefits. The new contractor, unlike the nursing home, did not consider the employee's preferences when it scheduled her for work. The employee received a pay increase on January 22, 2005, to $9. She had numerous supervisors in a short six month period, all of whom the employee felt were unfriendly. If she earned overtime pay within a two-week pay period, the employer, instead of paying her overtime, would move the overtime hours into the next pay period to avoid paying her overtime. The employee eventually concluded that she was not being treated with respect and that her work was not appreciated, so she quit.

The employee argued that she quit with good cause attributable to the employer. The commission agrees.

The employer refused to pay the employee overtime and simply moved those hours into the next pay period. Pursuant to Wis. Admin. Code § DWD 274.03, employers are required to pay time and a half if a worker works more than 40 hours in a week. There are exceptions, but they do not pertain to the employee. The employer did not appear at the hearing, so the employee's testimony was not disputed. Because the employer failed to pay the employee in accordance with the law and the effect of this failure was to reduce her wage by $4.50 for every hour of overtime she worked, the employee's quitting was with good cause attributable to the employer.

The commission therefore finds that in week 27 of 2005, the employee quit her work with the employing unit with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2005, if otherwise qualified

Dated and mailed October 28, 2005
wilksma . urr : 145 : 4  VL 1059.206

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a differing impression of witness credibility and demeanor. The commission reversed the ALJ because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


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uploaded 2005/10/31