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

JULIAN CORDAY, Employee

JAMES FUNCHES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600787MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a trucking business, for about three years as a truck driver. His last day of work was December 28, 2006 (week 52).

The employer generally gives its drivers large cash advances to be used for tolls, fuel, and any other needs. While most drivers spend about $50 on personal expenses, the employee routinely spent several hundred dollars. About a year into his employment the employer started charging the employee twenty-five percent interest on the money he borrowed. Shortly before the end of his employment, the employer told the employee he could not continue spending that kind of money on personal expenses.

The employee drove for the employer in the week of December 10 through 16, 2006, and used $276 of the cash advance for personal expenses. The employee did not work the next week. He worked the week of December 24 through 30, 2006, and incurred $297 in personal expenses.

The employer pays its employees every week for the pay period two weeks earlier. On January 2, 2007 (week 1), the employee came to collect his paycheck for the pay period December 10 through 16, 2006. After the employer subtracted the $276 the employee owed it for personal expenses, increased by twenty-five percent interest, plus $126 to cover his personal telephone bill, and a $25 fee for completing certain paperwork, the employee's total paycheck for the week amounted to only $175.26. Prior to releasing the check to the employee, however, the employer asked him to pay it the $297 he had borrowed for the week of December 24, plus twenty-five percent interest, for a total of $371. The employee responded that he had no money to repay the employer and requested the paycheck. The employer offered to schedule the employee for a load going out that day or the next, so he could earn the money to repay the employer, but the employee refused the load.

At this point the employee asked the employer to call the police, and the employer did so. A police officer came to the workplace and attempted to resolve the situation. The officer spoke with the employee at length before asking the employer what had happened and whether the employee was fired. The employer stated that it was not firing the employee and that the employee was welcome to work that day. After the police officer left, the employee cleaned out his truck. When the employer asked if the employee was quitting, the employee did not respond. The employer attempted to contact the employee thereafter to offer him additional assignments, but the employee did not respond to the employer's telephone messages.

The issue to decide is whether the employee quit or was discharged and whether he is eligible for benefits based upon that separation.

Although the employee contended that he was discharged, the employee had the option of continuing to work for the employer, but chose not to do so. The commission concludes that the employee quit.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee quit when the employer refused to give him his paycheck for the week of December 10, 2006. The employer indicated that it withheld the check because the employee owed it additional monies, and it was concerned it would not be repaid, since the employee had no paycheck coming the following week. However, the employee worked in the last week of December and would have been paid for that work in two weeks. There is no reason the employer could not have deducted the $371 the employee owed it from the December 24 through 30 paycheck, the check corresponding to the pay period in which the expenses were incurred. Moreover, while the employer apparently felt the employee was taking advantage of it, the commission believes that the employer bore some responsibility for the employee's debt to it, because it continued to advance the employee large sums of money without any clear rules about personal use. Further, it is hard to sympathize with the employer's concerns that its loans would not be repaid, where the employee's debt to the employer has been substantially inflated by interest charges added by the employer.

Finally, the commission is troubled by the employer's unilateral deduction of a $25 paperwork charge from the employee's paycheck. The employee testified that he was not aware of this charge, which the employer stated is because the employee either does not record his odometer readings or records them incorrectly. Wisconsin statute § 103.455 makes it unlawful for an employer to make deductions from an employee's paycheck for faulty workmanship, unless the employee has previously authorized the employer to do so in writing, or other specific procedures have been followed, and the commission has held that deductions from an employee's paycheck for poor performance are in violation of Wis. Stat. § 103.455 and provide the employee with good cause to quit. Still v. H B Express (LIRC, June 4, 2002); Middour v. Affordable Homes of LaCrosse (LIRC, March 15, 1994). The commission concludes that the employer's actions in deducting a fee from the employee's paycheck based upon his failure to satisfactorily complete his paperwork, without prior notice to and agreement from the employee, along with its actions in withholding the employee's paycheck pending repayment of a loan, amounted to a substantial fault on the employer's part which provided the employee with good cause to quit.

The commission, therefore, finds that in week 1 of 2007, the employee voluntarily terminated his work with the employer, and that his quitting was 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 modified as to the week of issue and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2007, provided he is otherwise qualified.

Dated and mailed May 24, 2007
cordaju . urr : 164 : 1  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: Although the commission conferred with the administrative law judge about witness credibility and demeanor, the commission's decision to reverse is not based upon any differing assessment of witness credibility.


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uploaded 2007/05/29