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

DENNIS J MUEHLBACH, Employee

OCONNORS TRANSPORTATION SPECIALISTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000508MD


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 the employer, a trucking company, for about four months as an over-the-road truck driver. His last day of work was January 2, 2007 (week 1).

The employee was to be paid every Friday by 3:30 p.m. Because he was on the road, the employee preferred to have his paychecks directly deposited into his bank account. However, the employer was not always able to arrange for a direct deposit. The employer would sometimes deposit only a portion of the paycheck into the employee's account and would pay him the rest at a later time.

In October of 2006 the employee received a $400 ticket for driving the employer's truck with temporary license plates that had expired and because of a problem with one of the tires. The ticket was written to the employee and, although the employer promised to pay it, it failed to do so. The employee ultimately paid the ticket himself, then unsuccessfully sought reimbursement from the employer. Thereafter, the employer obtained another temporary license plate. The new temporary plate was set to expire on January 3, 2007.

The employee agreed to drive over the Christmas and New Year's holidays, provided the employer got him back before the license plate on the truck expired on January 3, 2007. On January 2, the employee called the employer from Mississippi and told it he was quitting if the employer did not get him back to Wisconsin by January 3. The employer could not find a trip to Wisconsin and instead instructed the employee to pick up a load in New Orleans and go to Tennessee. The employee stated that this was nothing but trouble and repeated his request to get back to Wisconsin to "get this legalized." The employer became angry and told the employee to bring the truck back if he was not going to pick up the load in New Orleans. The employee returned the truck to the employer's premises and performed no further services for the employer thereafter.

The employee contended that, at the time the employment relationship ended, the employer owed him three paychecks. Subsequent to quitting, the employee filed a wage complaint with the Labor Standards Bureau of the Equal Rights Division. (1)

The issue to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

Generally, an employee who voluntarily terminates his employment is ineligible for unemployment insurance until he meets the prequalification requirements of Wis. Stat. § 108.04 (7)(a). An exception is (7)(b), which allows immediate unemployment insurance eligibility for claimants who quit their employment with good cause attributable to the employer. "Good cause" for quitting requires a real, substantial, and unreasonable act or acts by the employer. Worachek v. Koch Brothers, Inc., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965).

The employee quit primarily because the employer was requiring him to drive with expired license plates. While the employer contended that it did renew the license and was waiting for the permanent plate to arrive, the fact remains that the temporary plates on the truck to which the employee was assigned were due to expire on January 3, 2007. The employee had previously received a $400 ticket for driving the employer's truck with expired temporary plates, and although the employer promised to reimburse him, as of the date of his resignation, nearly three months later, it had not done so. The employee should not have to take financial responsibility for the employer's failure to keep its license current, and his quitting rather than subject himself to a second such ticket was with good cause attributable to the employer.

The employee's quitting was also related to the fact that the employer did not always pay him on time and in full. The fact that the employer may have found it difficult to directly deposit the employee's paychecks into his bank account does not explain why the amount of pay he was due or the date on which his salary was payable would be at issue.

The employee provides his services to the employer in exchange for pay. Employees must be able to trust their employers to timely satisfy their payroll obligations. Harycki v. Wiedemeyer Service Center, Inc. (LIRC, Aug. 26, 1991). An employee is justified in quitting any employment in which he does not receive his paychecks in full and on time, and in which he is held financially responsible for citations that should have been issued to the employer and that are related to equipment matters over which only the employer has control.

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 reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2007, provided he is otherwise qualified.

Dated and mailed June 21, 2007
muelbde . urr : 164 : 1 VL 1005.01  VL 1059.07

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer 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, but is as a matter of law.

cc: Brian O'Connor



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Footnotes:

(1)( Back ) The employee submitted documentation showing that the Labor Standards Bureau issued a determination finding that the employer owed the employee a total of $2,802.24 for work performed between December 11, 2006, and January 2, 2007, and that a check issued in partial satisfaction of the employee's wage claim was returned by the employer's bank for insufficient funds. The commission considers it unnecessary to order a remand to get this evidence into the record, however, as there is sufficient other evidence to support a finding that the employee's quitting was for good cause, even in the absence of the Labor Standards Bureau's ruling.

 


uploaded 2007/06/25