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

CARL A ZAHN, Employee

BROOKE BUILDERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001035JF


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 nine years as a laborer for the employer, a home construction business. His last day of work was October 10, 2005 (week 42). He filed an additional unemployment benefit claim on December 13, 2005 (week 51), reporting that the employer laid him off.

On October 10, 2005, the employee left a job site, telling the owner that he intended to register a vehicle. When he failed to return to work or contact the employer thereafter, the owner considered him to have abandoned his job and quit. The employer later learned that after his last day of work, he had gone on a drinking binge and then entered a rehabilitation program.

Ordinarily, a worker who becomes unemployed by quitting is not immediately eligible for unemployment benefits. However, a quitting with good cause attributable to the employer does not result in benefit disqualification. Accordingly, the issue is whether the employee quit with good cause attributable to the employer.

During much of 2005, the employer paid its workers at irregular intervals because the employer paid its payroll after first receiving payment from its customers. The employee contended that on his last day of work, he told the owner that he was quitting because the owner owed him wages. However, the fact that he reported to the department that the employer laid him off belies his claim that he explicitly resigned on his last day. Moreover, a letter from his rehabilitation counselor indicates that he had a job when he began treatment several weeks later. These circumstances suggest that the employee quit by abandoning his job.

The employee argues that his quitting should not result in the suspension of his unemployment benefit eligibility. The commission agrees. To establish a quitting with good cause attributable to the employer, the employee must show that he quit because of employer conduct that was so substantial, unreasonable and harmful to his interests that it justified his choosing to become unemployed. While a worker may not be required to exhaust all alternatives prior to quitting, in most cases he is expected to pursue some reasonable and less drastic resolution to an employment issue before quitting. Lauer v. Kentucky Fried Chicken. UI Dec. No. 97201127EC (LIRC, November 28, 1997).

It is undisputed that the owner paid workers at irregular intervals during the 2005 season. The employer specifically indicated that he did not pay the employee some of his wages, arguing that he did not know where he should send the employee's checks. The employer in fact testified that the employer unilaterally determined that the employee should no longer be an employee but an independent contractor and that the employer stopped taking taxes out of his check. The owner further stated he had not gone through some of the timecards the employee forwarded to him. Further, the owner said he might have a few timecards at home that the employee was not paid for.

The employer's failure to pay the employee in a timely manner, and failure to pay him entirely on some occasions was so egregious as to give the employee good cause attributable to the employer for quitting. While the employee did not explicitly inform the employer he would quit because of the employer's continuing payroll problems, it was not necessary to bring this up to the employer in this case because the employer was already aware that this was happening. The owner was or should have been aware that the failure to pay the employee his wages was unacceptable, even without being told. Further, the employer failed to give the employee required documentation the employee needed in order to file his own taxes.

The commission therefore finds that, in week 42 of 2005, the employee voluntarily terminated his work 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 reversed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2005, if otherwise qualified.

Dated and mailed July 27, 2006
zahnca . urr : 145 : 2 VL 1059.07  VL 1005

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


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