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

KIRBY L YOUNKIN, Employee

MASTEC CONTRACTING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001644MD


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 for seven months as a fiber optic lineman for the employer, a cable contracting business. His last day of work was March 25, 2005 (week 13) when he quit his employment with four days notice.

For the first few months of employment, employee had been working temporary assignments for the employer away from his home state - Wisconsin - in Atlanta, Georgia and in Florida. He earned $12.00 an hour for the employer and his hope was to obtain permanent work with the employer in the Milwaukee, Wisconsin area, about one hour's drive from his residence. The assignments were subsidized by a $25 per diem allowance or the employer directly paying a motel bill for up to 30 days at the site.

Near the end of 2004, the employee was loaned to a St. Louis, Missouri crew to work for two weeks. While in St. Louis, he learned that the Atlanta job was shutting down. Knowing this, he opted to stay with the crew in St. Louis with the hotel subsidy to end after 30 days but with a job with the employer in Milwaukee, Wisconsin, pending in the near future. The $1,200 monthly subsidy for the hotel in St. Louis ended on or about January 29, 2005 (week 5).

The employee terminated work in week 13 after he did not get overtime to the extent he had in Atlanta, his request for a raise was not granted, and the Milwaukee job had not yet materialized. With the loss of the hotel subsidy, the employee could no longer afford to work in St. Louis.

Wis. Stat. § 108.04(7)(a) denies unemployment insurance benefits to a worker who voluntarily terminates his or her employment unless the quitting falls within one of the exceptions set forth in the statutes.

Thus, the issue to be decided is whether the employee's quitting fell within a statutory exception to allow for the immediate payment of unemployment insurance benefits.

The employer, via its agent, petitioned the appeal tribunal decision which found the employee's quitting fell within Wis. Stat. § 108.04(7)(e)  (1). While the employee worked approximately seven months for the employer, the administrative law judge treated the loss of the hotel subsidy as a "new work" situation. He then found good cause, under Wis. Stat. § 108.04(7)(e), for the quitting based upon the fact that the work was outside the employee's normal work area. Yet, the commission considers the removal of the hotel subsidy to be more appropriately considered under the quit with good cause attributable to the employer exception  (2)  as a decrease in compensation. In Farmers Mill of Athens, Inc. v. ILHR Dept., 97 Wis.2d 576 (Ct. App. 1980), the court held that a unilateral change in the conditions of employment on the part of the employer which resulted in a significant pay reduction to the employee constituted good cause attributable for quitting.

In this case, the loss of the hotel subsidy was a unilateral decision by the employer. No evidence was offered to establish that the change resulted from any poor performance by to the employee. The change substantially decreased his income; in particular, his monthly income would be reduced by more than 50 percent. Additionally, the local Wisconsin position had not materialized as the employee hoped and he unsuccessfully pursued the alternatives of asking for a raise and for payment of living expenses prior to his quitting. Under these circumstances, the commission finds that his quitting was with good cause attributable to the employee and he is immediately eligible for unemployment insurance benefits.

The commission therefore finds that the employee voluntarily terminated employment in week 13 of 2005 with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is modified to conform with the above and, as modified, is affirmed. Accordingly, beginning in week 13 of 2005, the employee is eligible for unemployment insurance benefits, if otherwise qualified.

Dated and mailed July 7, 2006
younkki2 . urr : 150 : 8   VL 1005.01  VL 1059.201

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission based its decision on essentially the same facts as found by the ALJ but modified the statutory exception because it believes that this factual situation is more appropriately analyzed under Wis. Stat. § 108.04(7)(b). As a note, Wis. Stat. § 108.04(7)(h) provides that a Wisconsin UI taxable employer will not be charged for a quitting under Wis. Stat. § 108.04(7)(e), unlike Wis. Stat. § 108.04(7)(b).

cc: Mastec Contracting Co., Inc. - Coral Gables, FL



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Footnotes:

(1)( Back ) Wis. Stat. § 108.04(7)(e) finds that the general quitting disqualification does not apply if the employee accepted work the employee could have refused under Wis. Stat. § 108.04(9) and terminated such work within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides, in relevant part, that benefits may not be denied to an otherwise eligible individual for refusing to accept new work if the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

(2)( Back ) Wis. Stat. § 108.04(7)(b).

 


uploaded 2006/07/10