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

JOLENE L ROPIAK, Employee

GLOBAL STAFFING RESOURCES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604650MW


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 23 of 2006, if otherwise qualified.

Dated and mailed November 15, 2006
ropiajo . usd : 115 : 4    VL 1005.01   VL 1059.20 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The employee worked just over 90 days in 2006 as a sales and account coordinator for the employer, a staffing service.

The employee had a first interview for the position on February 14, and a second interview on February 17, 2006.

In a February 17 email (page 2 of Exhibit #1), the employer's branch manager stated as follows:

After further discussion with our CEO, we have decided to offer you a position with GSRI. Our offer is $11/hr + 2.5% (New client) and 2.5% (for new placement). If you accept, would it be possible for you to start 2/22/06 @ 8am-5pm?

The employee accepted the employer's offer.

On February 22, her first day of work, the branch manager presented the employee an employment contract (Exhibit #2) and a letter (Exhibit #3).

In regard to compensation, the contract stated "see attached addendum." The parties understood the letter to be this addendum.

The letter stated the following in regard to "salary:"

$11.00 per/hr plus 5% commission (2.5% for placement and 2.5% for accounts established with new Client Companies). After 90 days probationary period, your compensation will be strictly on commission.

The employee testified that she discussed the post-90-day compensation provision with the branch manager before signing the contract and letter, and he told her that, despite what it stated in the letter, she would continue to receive the $11 per hour base pay after her 90-day probationary period ended.

The branch manager denies he said this to the employee. He testified that she was told in her interviews that the hourly pay would not continue after her initial 90 days of employment, this was stated in the contract letter addendum which she signed, and he never stated anything to the contrary.

By letter to the employee dated June 2, 2006, the branch manager stated as follows:

It is with my regrets that as of week ending 5/28/06 is your last paycheck. Starting week ending 06/04/06, your weekly salary will no longer be paid by GSRI, but on strictly commission only.

Please allow me to clarify the situation. At the beginning of your contract with GSRI, you sign an agreement with GSRI, stating that after three (3) months probation with GSRI, the rest of your wages would be strictly on commission. Due to the fact that we were not able to generate new clients and enough job orders to maintain the operational of GSRI.

Please see me to discuss this matter at length if you have any questions.

Upon her receipt of this letter, the employee spoke to the branch manager about it. The employee testified that the branch manager stated that he was as surprised as she was by the CEO's decision, and that he had been unaware that such a decision would be made. The branch manager testified that he never made this statement to the employee.

The administrative law judge (ALJ) credited the employee's version of events, and there is no persuasive reason to overturn this credibility determination. First of all, the employee credibly testified, in essence, that she would not have accepted the position if she had been told in her interviews that, after 90 days, she would be working just on commission, or if she had not been reassured by the branch manager that her hourly wage would continue after the end of her 90-day probationary period. In addition, the content of the branch manager's February 17 email tends to support the employee's testimony that abandonment of the hourly wage after 90 days was not part of the interview/hiring discussions; and the apologetic tone of the branch manager's June 2 letter conveys the impression, as the employee testified, that he had told her at the time of hire that, contrary to the language of the letter addendum, her hourly wage would continue after her probationary period ended, and was surprised when, at the end of 90 days, the CEO decided it would not.

Generally, such a substantial decrease in pay without reasonable justification provides good cause attributable to the employer for a quit. See, Farmers Mill of Athens, Inc. v. ILHR Dept., 97 Wis.2d 576 (Ct. App. 1980); Cornwell Personnel Associates v. LIRC 175 Wis.2d 537 (Ct. App. 1993); Casalena v. Gateway Plastics, Inc., UI Hearing No. 02005855WK (LIRC May 21, 2003); Johnson v. Alarm Detection Systems, Inc., UI Hearing No. 00607820RC (LIRC Jan. 4, 2001)(change in worker's pay from hourly plus commission to commission only constituted significant pay reduction and provided good cause attributable to the employer for quit).

Moreover, an employer's permanent and unilateral modification of a term of employment to which it had agreed upon hire, without reasonable justification, generally provides good cause attributable to the employer for the employee's quit. See, Christensen v. Chas Levy Co. LLC, UI Hearing No. 01606651RC (LIRC Dec. 5, 2001); Zunker v. On Cue, Inc., UI Hearing No. 99400005AP (LIRC April 16, 1999). The record supports a finding that such a modification was made here.

As a result, the commission concludes that the employee quit with good cause attributable to the employer.

The employer argues in its petition that the ALJ repeatedly addressed the branch manager (Thomas Xiong) by the CEO's name (Jeff Yang), and that this demonstrated cultural insensitivity and bias on his part. However, a review of the hearing tape demonstrates that the ALJ consistently addressed the branch manager by his proper name.

The employer also alleges that the ALJ announced that the tape recorder was not working properly and that this may have been a tactic to "cover up evidence." However, a review of the tape does not establish that any testimony was not properly preserved, and the employer fails to specifically identify any evidence which was offered and received, but not included in the hearing record.

The employer also asserts in its petition that the ALJ improperly conversed with the employee after the hearing and after the employer had already left the room. However, even if this were true, the commission's review of this matter is de novo, and any extra-record information acquired by the ALJ, or any bias on the part of the ALJ which did not result in the improper exclusion of evidence, would not have an impact on the commission's decision.



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uploaded 2006/11/20