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

GARY F PFEIFFER, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608224MW


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 eligible for benefits beginning in week 43 of 2005, if otherwise qualified.

Dated and mailed February 16, 2006
pfeifga . usd : 135 : 2  VL 1025  VL 1059.201

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

It is undisputed that the employee's failure to accept a new assignment with the employer, which would have continued his employment, amounted to a voluntary termination by the employee. The remaining issue is whether the employee's reasons for quitting constitute an exception to the quit disqualification found at Wis. Stat. § 108.04(7)(a).

The most relevant statutory exception can be found at Wis. Stat. § 108.04(7)(b) which provides that an employee is eligible for benefits if the employee terminates his or her work with good cause attributable to the employing unit.

Here, the employee had completed one assignment for the employer, lasting 11 weeks, as a shipping and receiving clerk earning $13.00 per hour for first shift. When that assignment ended the employer offered the employee work as a paint filler, advising the employee that there would be a strong smell of paint fumes on this job. The employer further advised the employee that this job paid $10.50 per hour for first shift and $11.00 per hour for second shift. The employee refused the paint filler job because he was looking for an assignment in shipping and receiving, did not like the lower wage and the smell of paint fumes.

The ALJ noted that the paint filler job wage constituted a reduction of 19.23 percent for first shift work and an approximate 15 percent reduction in pay for second shift work. The ALJ correctly noted that Wis. Stat. § 108.04(7)(f) (reduction by one-third of wage) was inapplicable to this case. However, the ALJ did conclude that given this significant wage reduction the employee established that his quitting was within the meaning of Wis. Stat. § 108.04(7)(b).

The employer argues that the ALJ's decision expands any exception provided under Wis. Stat. § 108.04(7)(b) beyond its intent and should be reversed. The commission disagrees. There is commission precedent dealing with wage reductions that are less than that required under Wis. Stat. § 108.04(7)(f). In Larry L. Watson v. Dream Weaver Express, UI Hearing No. 03201402EC (LIRC April 29, 2004), the commission held that a decrease in pay, even if the wage offered is not substantially less favorable (which is the case here), can amount to good cause attributable to the employer for quitting. See also Kromenacker v. Adventure Academy, Inc., UI Hearing No. 03401580GB (LIRC March 4, 2004). Indeed, depending upon the circumstances of the case, the commission has held that quitting with good cause attributable to the employer has been found, even when the pay decrease is much less than one-third of an employee's wage. See Casalena v. Gateway Plastics, Inc., UI Hearing No. 02005855WK (LIRC May 21, 2003).

The employer argues that the employee signed an employment contract stating he would take various job assignments with different shifts as well as a different range of pay ranging anywhere from $5.70 to $17.00 an hour. However, the employee had worked only one assignment for this staffing agency and did not have a history of working outside his desired industry or earning less than $13.00 an hour for this employer. Therefore, based on the substantial wage reduction here, the commission concludes that the employee's termination with the employer was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b). The appeal tribunal decision is therefore affirmed.


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


uploaded 2006/02/20