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

ROGER H BERNS, Employee

LORI KNAPP RICHLAND INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05004647MD


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 36 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. The employee is required to repay the sum of $53.00 to the Unemployment Reserve Fund.

Dated and mailed January 27, 2006
bernsro . usd : 132 : 1  VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that found he voluntarily terminated his employment but not for any reason permitting immediate benefit payment. The employee states that the ALJ erred in his decision because he did not consider the resignation letter of August 23, 2005, to be the day that he quit. However, the commission agrees with the ALJ that, for unemployment insurance purposes, the employee's quitting was effective with his last day of work, not the date he gave notice that he would be quitting. The employee began work on June 22, 2005, when he was paid to attend a training session. He quit his employment on September 1, 2005. The employee quit eleven weeks after starting work for the employer. Wis. Stats. § 108.04(7)(e), provides for the application of labor standards where an employee quits within ten weeks of beginning work if the conditions of such work are less favorable to the employee than for similar work in the employee's labor market. Wis. Stat. § 108.04(7)(e) was no longer applicable to the employee's situation because he did not quit within ten weeks of beginning work for the employer. The commission agrees that the employee did the polite thing in providing the employer with two weeks notice. Unfortunately, under the law, the employee needed to provide the notice earlier so that his quitting fell within the 10-week period which would allow for application of the labor standards provision.

The commission is unsure of the employee's reason for referencing his claim in week 36 of 2005. There is no issue before the commission regarding the employee's failure to report vacation pay. Department records do not reflect any formal department determination finding the employee failed to report such pay.



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