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

ALICIA M ALBERTSON, Employee

GERLACH WHOLESALE FLOORING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05004290MD


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 as an accountant and a sales person for about a year with the employer, a wholesale flooring company. The separation occurred on August 29, 2005 (week 36), which was also the employee's last day of work.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee worked about 31 hours per week. She worked on Mondays from 9:00 a.m. until 6:00 p.m., Tuesdays from 8:30 a.m. to 2:30 p.m. with no lunch; Wednesdays from 12:00 to 6:00 p.m.; Thursdays from 8:30 a.m. to 2:30 p.m., and Fridays from 9:00 a.m. until 1:00 p.m. The employer unilaterally decided to change her hours, and gave her a rules and update letter to sign on August 29, 2005. She informed the employer that she had reviewed it and would not sign it because it increased her hours and scheduled her for Saturdays. She would work Mondays from 10:00 a.m. until 6:00 p.m., Tuesdays and Thursdays from 8:30 a.m. until 3:30 p.m., and she was required to take an hour lunch from noon until 1:00 p.m. On Wednesdays she was to work 12:00 p.m. until 6:00 p.m. and on Fridays from 10:00 a.m. until 4:00 p.m. Therefore, each week she was required to work an extra hour, in addition to three hours every third Saturday. She would not receive any additional pay for working these additional hours. In addition, she was required to take two one hour lunch breaks, therefore she would not be able to leave as early as she normally did. The employee refused to quit, but informed the employer she would work her regular hours. The employee had a part-time job and had to change her schedule with her part-time employer in June, and would have been required to rearrange her schedule in August in order to work the new schedule. The employee had been hired as an accountant and had been later given sales duties. The employee started at $450 per week, with no commissions. However, the employer decided, in August of 2004, to have her work more hours and take on additional duties in order to offset her salary. She helped out at the store from time to time but there were conflicts with that because the employee's co-workers did not want to share their commissions with her. The employer then "shifted" her back to doing more office stuff. The employer had increased her hours in sales in June.

After the employer told her on August 29 of the schedule change, the employee closed the store at 10:30 a.m. and went to the parking lot to sit in her car. She had the employer's keys and credit card with her. The employer tried to persuade her to come back to work, but no agreement was reached. Around 1:30 p.m. the employer went to the employee's car and told her she was fired. She then gave the employer her keys and credit card.

The employee contended she was discharged. The commission disagrees. The employee closed the employer's store when presented with the new work schedule. She sat in her car, refusing to work from about 10:30 a.m. to 1:30 p.m. She returned the keys and corporate credit card only after the employer told her she was fired, although she had been asked for them earlier. The employee's actions were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes the employee quit her employment.

Under Wis. Stat. § 108.04(7)(a) a worker who voluntariliy terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm. 27 Wis. 2d 398, 134 N.W. 2d 412 (1965); Hammer v. DILHR, 92 Wis. 2d 90, 284 N.W. 2d 587 (1979).

The occasion of the employee's quitting was the final change in the employee's schedule. The employer unilaterally informed the employee that she would be required to work an additional hour each week, andtake a lunch two days per week, which effectively had the employee working an hour later on Tuesdays and Thursdays. The employer also required her to work every third Saturday. The employee would not be given additional pay for the incresed hours. The employer suggested that the employee would be allowed to work in sales and make additional money by generating commissions. However, in the past, the employee had been put in sales, then had been put back in the office because her co-workers did not want to share their commissions with her. Further, the employee's commissions were speculative and as such could not be considered additional compensation for the increased hours. The employer had changed her schedule several times and specifically indicated it wanted to have her work more to make up for her $450 salary. The employee explained that she would not work the new schedule but would continue to work her old schedule.

The employer's actions in requiring the employee to work additional hours without being paid for them, in addition to its other actions with respect to her hours, job duties and commissions, were arbitrary and unreasonable.

The commission therefore finds that in week 36 of 2005, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 36 of 2005, the employee terminated work with the employer 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 modified and affirms. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 15, 2005
alberal . urr : 145 : 1 VL 1007.01  VL 1059.204

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


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