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

CRYSTAL B TROTT, Employee

PERKINS FAMILY RESTAURANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201297RL


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 18 of 2006, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,839 to the Unemployment Reserve Fund.


Dated and mailed October 5, 2006
trottcr . usd : 115 : 2  VL 1005.01  BR 319.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The employee quit because she had been scheduled to work a shift as a server. The employee did not discuss her scheduling concerns with the employer before submitting her resignation.

The question is whether any exception to the quit disqualification would apply here.

The exception stated in Wis. Stat. § 108.04(7)(cm) would not apply because the employee was not hired to work a particular shift; and that stated in Wis. Stat. § 108.04(7)(f) would not apply because the employee was not assigned new duties paying less than two-thirds of her immediately preceding wage rate.

The only remaining exception to the quit disqualification which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane Co. Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).

An actual or potential decrease in income could not provide good cause here. (1)  The employee, who never worked the scheduled server shift, did not actually sustain a decrease in her income. Moreover, the evidence of record does not show even the potential for a substantial decrease in income because hourly managers typically earned as much working as servers as they did as managers.

Even if server duties were less desirable than manager duties, and even if an assignment to less desirable duties could constitute good cause, the record would have to show that the employee's occasional assignment to server duties was not reasonably justified in order for that result to be reached. See, Werginz v. Krenn's Machine, Inc., UI Hearing No. 04608760WK (LIRC Feb. 15, 2005);  Micoley v. Event USA, Inc., UI Hearing No. 06400319GB (LIRC April 21, 2006).
The employee did not make such a showing here. The record instead shows that, given business conditions, the necessity that the employee work at least 32 hours per week in order to qualify for health insurance coverage, the limitations on the employee's availability for certain shifts, and the scheduling needs of other managers, the employer's assignment of the employee, as well as other hourly managers, to an occasional server shift, was reasonably justified.

Moreover, the record does not show that the employee explored alternatives short of quitting, or provided the employer an opportunity to address her concerns before terminating the employment relationship. Upon receiving notice that she was tentatively scheduled to work a server shift, the employee resigned without discussing her concerns with the employer.

The employee failed to sustain her burden to prove that her quitting was with good cause attributable to the employer.

The commission agrees with the ALJ that the employer had good cause for its failure to provide information to the department by the deadline imposed by the adjudicator. The record shows that the adjudicator left a message on the employer's owner's voice mail at 4:15 p.m. on Thursday, May 18, 2006, requesting a response on or before 4:15 p.m. on Monday, May 22, 2005; and that the owner was out of town from May 18 through May 22, but provided the information on Wednesday, May 24, 2006, the day the investigator issued the determination. The short turnaround time dictated by the investigator, the owner's absence, and the fact that the employer had no reason to anticipate prior to May 18 that such a response would be sought in the near future and on short notice, support a conclusion that good cause has been demonstrated.

Much of the information offered and discussed by the employee in her petition is not in the hearing record and may not, as a result, be considered by the commission in reaching its decision. Since such information appears to have been available to the employee at the time of hearing, further hearing to provide her the opportunity to make it part of the hearing record is not merited.

cc: Perkins Family Restaurant, Attn Kathy Schlough



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Footnotes:

(1)( Back ) The courts and the commission have held that a substantial wage decrease due to adverse business conditions can constitute good cause attributable to the employer. See, Franke v. DILHR et al., Case Nos. 134-237, 134-238 (Wis. Cir. Ct. Dane Co., March 13, 1972); Butler v. Advantage Advertiser LLC, UI Hearing No. 02002243BO (LIRC July 5, 2002).

 


uploaded 2006/10/09