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

DEBRA R KALLENBACH, Employee

SPORTS PAGE BOWL & GRILL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200431AP


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 53 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.

Dated and mailed June 12, 2006
kallede . usd : 150 : 8  VL 1020

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision which found that her quitting of her part-time position with the employer was not within any exception to allow for the immediate payment of benefits. Consequently, under Wis. Stat. § 108.04(7)(a) the employee was denied benefits until four weeks had elapsed from the week of her quitting and she had earned four times her weekly benefit rate in subsequent covered wages. Prior to meeting these requirements, the employee was laid off from her full-time employer; the layoff was for two weeks from January 16 through 27, 2006 (weeks 3 and 4). The petition contended the application of the general quitting disqualification was unfair given her circumstances. However, the general disqualification must be applied to any quitting that fails to fall within the enumerated exceptions. Of the listed exceptions, only Wis. Stat. § 108.04(7)(o) shares some similarities with the facts of the employee's quitting. In particular, Wis. Stat. § 108.04(7)(o) provides

(o) Paragraph (a) (1) does not apply to an employee who terminates his or her work in one of 2 or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week.

While Wis. Stat. § 108.04(7)(o) may have been created with the intent of applying to the employee's situation, (2)  the statutory language requiring a "termination" from the full-time employer does not apply to the employee's situation. In particular, the employee's layoff from her full-time employer was for a definite period of two weeks. The commission has interpreted the word "termination" to be a complete termination of the full-time work relationship; it has consistently declined to apply the exception to a temporary layoff situation. Heaton v. Lands End Inc., UI Dec. Hearing No. 02003922DV (LIRC October 7, 2002). Also, see Delzer v. Wal-Mart Associates, Inc. UI Dec. Hearing No. 98202023EC (LIRC May 6, 1999), Werner Neuendorf v. Lincoln Lutheran of Racine Wisconsin, Inc., UI Dec. Hearing No. 94605965RC (LIRC February 8, 1995, amended February 17, 1995) and Donovan R. Harjo v. Panoramic Inc., UI Dec. Hearing No. 96005676JV (LIRC March 28, 1997). Such an interpretation of the word "termination" is also consistent with other cases involving the issue of whether an employment relationship continues through a layoff. See Hemstock Concrete Product v. LIRC, 127 Wis.2d 437, 380 N.W.2d 387 (Ct. App., 1985) and A. O. Smith Corp. v. ILHR Department, 88 Wis. 2d 262, 276 N.W.2d 279 (1979) (a "definite and predictable recall" continues an employment relationship).

Thus, after careful review of the facts leading to the employee's unemployment benefit claim in weeks 3 and 4, the commission affirms the appeal tribunal decision, finding that the employee's quitting does not fall within Wis. Stat. § 108.04(7)(o) or any other exception to the general quitting disqualification.

As a final note, while it is of little consolation to the petitioner, the commission is submitting a copy of this decision to the Unemployment Insurance Advisory Council (UIAC) for consideration of whether the UIAC wishes to propose a law change regarding Wis. Stat. § 108.04(7)(o) in the next bill cycle. Specifically, whether the word "termination" should be replaced with "terminated or suspended by the employer for a nondisqualifying reason."


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Footnotes:

(1)( Back ) Paragraph (a) is the general quitting disqualification.

(2)( Back ) In the legislative summarization of the new statutory changes, the 1991 - 1992 statute booklet provides that §108.04(7)(o) created a new quit exception "which applies where a claimant has quit one of two concurrently held jobs and is then unexpectedly laid off from the remaining job. . ." Also, a copy of the February 15, 1990 "ANALYSIS OF PROPOSED LAW CHANGE" provides that in simultaneous employment situations, "[t]he exception would not disqualify when the claimant quit the part-time job and later, unexpectedly loses the full-time job for a nondisqualifying reason."

 


uploaded 2006/06/20