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

ASHLEY L BEHRNDT, Employee

CUMBERLAND MEMORIAL HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201370EC


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 as a certified nursing assistant for the employer, a hospital. On May 7, 2006 (week 19), the employee was scheduled to work a twelve hour shift from 11:00 a.m. until 11:00 p.m. The employer allows its workers to sign up to be "cut" if the employer is overstaffed for a particular shift. If no one signs up, then the least senior person working is cut. The employer was overstaffed on May 7 and the employee had signed up to be "cut" for the first four hours of her twelve hour shift, but not for the last eight. The employee was cut for the first four hours and would have been anyway because she was the least senior person for that time period. Around 1:15 p.m., the employer's charge nurse called the employee and asked her if she wanted to be cut for the last eight hours of her shift. The employee would not have been the least senior person for the last eight hours. The employee told the charge nurse that she would leave it up to the least senior person. If that person wanted to work that eight hour shift, then the employee agreed to be cut. The other worker did agree to work the shift and so the employee did not work at all on May 7. The employee was paid an on-call rate for the whole twelve hour shift of $2.25 per hour.

The issue to be decided is whether the employee suspended her employment in week 19 of 2006 for any reason permitting the immediate payment of benefits.

The employee argues that the inverse seniority quit exception at Wis. Stat. § 108.04(7am) should apply in situations such as this one where the employer acknowledges that it has insufficient work for all of its scheduled workers and permits a more senior worker to give that work to a less senior worker.

Wis. Stat. § 108.04(7am) provides: Paragraph (a) does not apply if the department determines that the suspension or termination of the claimant's work was in lieu of a suspension or termination by the employer of another employee's work. The claimant shall not be deemed unavailable for the claimant's work with the employer by reason of such suspension or termination.

While the commission has not traditionally applied this statute in cases of very short-term suspensions in employment such as a single shift, the commission concludes that it is appropriate to apply that section in this instance. In this case, the employee was contacted by the employer and notified that there was work available for a single worker. The employee was entitled to the shift unless she chose to let an identified less senior worker work the hours instead. She agreed to let the other worker have the shift. In the unique circumstances of this workplace, where the employer acknowledged that there was insufficient work and has by contract provided a system for more senior workers to yield shifts to clearly identified less senior workers, the provisions of Wis. Stat. § 108.04(7am) should apply. This situation is factually identical to the traditional application of the statute. In hospital and other health care settings, this system has been created for the convenience of the employer. The employee should not be penalized for using the employer's system as it was intended.

The commission therefore finds that in week 19 of 2006, the employee voluntarily suspended or terminated employment with the employer in lieu of the employer suspending or terminating a co-worker's job, within the meaning of Wis. Stat. § 108.04(7)(am).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 19 of 2006, if otherwise qualified.

Dated and mailed December 15, 2006
behrnas . urr : 178 : 1   VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission does not reverse based on a differing assessment of witness credibility. Instead, it reaches a different legal conclusion when applying the law to the facts.


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uploaded 2006/12/15