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

ALICIA R RUIZ, Employee

M & T COMMERCIAL HOLDINGS LLC
SPARTA TRAVEL CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003310LX


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 less than ten weeks as a customer service representative for the employer, which operates a gas station and convenience store. The employee did not complete all the work that was available to her in week 29 and did not thereafter perform any services for the employer. Exhibit 2 the termination statement composed by the employer indicated that the employee quit her employment on July 22, 2006 (week 29). At the time she quit, she was filing claims for partial unemployment benefits.

The statutes provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was within some exception that would allow for immediate benefit payment.

The employee explained that she quit her job because she had not been feeling well and decided that the job was not right for her. Several weeks after she quit, she was diagnosed with an ectopic pregnancy and underwent emergency surgery. She had not known she was pregnant when she quit.

The initial determination in this case allowed benefits because the employee accepted work which she could have refused with good cause, and quit that work within the first ten weeks with the same good cause. The initial determination determined that the employee worked about 18 hours per week as a cashier, but that only five percent of similar positions in the employee's labor market consisted of 18 hours per week or less. The employer's payroll records reflect that the employee worked less than 19 hours per week apart from two weeks in which she worked 19.5 hours each week. Moreover, the commission notes that only 19.28 percent of suitable work in the employee's labor market was on a rotating shift.

The employee was hired to work second-shift hours. In the employee's labor market less than 20 percent of similar work is performed on second shift. The employee did not raise the arrangement of hours as a reason for quitting. However, the commission noted in Schulenberg v. Yellow River, Inc., UI Dec. Hearing No. 98003804MW (LIRC March 23, 1999):

"The prevailing conditions of work standard applies to all denials of benefits for refusal of offers of or referral to new work, regardless of whether the claimant raises the issue and regardless of his reasons for refusing the job or the referral." Memorandum No. 324 to District Examiners (Industrial Commission of Wisconsin, August 2, 1950). This language, from the commission's predecessor, tracks federal language in what continues to be the federal government's most definitive pronouncement on labor standards, its January 6, 1947 Program Letter (No. 130). There, the Department of Labor states that the standards in question are minimum standards, that they apply to all denials of benefits for refusal of offers of or referrals to new work regardless of the reasons for refusing the job in question. By operation of Wis. Stat. § 108.04(7)(e), this standard also applies to quits within ten weeks of starting the employment in question."

The commission therefore finds that the employee accepted work in week 20 of 2006, that could have been refused because the wages, hours (including arrangement and number), or other conditions of the work were substantially less favorable to the employee than those prevailing for similar work in the locality, and that the employee voluntarily terminated that work in week 29 of 2006, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2006, if she is otherwise qualified. Pursuant to Wis. Stat. § 108.04(7)(h), if the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed March 23, 2007    [See Note]
ruizal . urr : 145 : 1   VL 1034

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on the credibility of the witnesses. The employee in this case failed to perform all of her scheduled hours in week 29, and never again performed services for the employer. For these reasons, the commission concludes that the employee quit in week 29.

 

NOTE: If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

 

cc: Attorney Notesong S. Thompson


 
Note:
  This decision was set aside  pending further consideration by a commission order dated April 30, 2007,  and was then reinstated by a commission order dated May 18, 2007.  Ruiz v. M & T Commercial Holding LLC, Spart Travel Center (LIRC, May 18, 2007).

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