LYNN E CLAPPER, Employee

PLAINFIELD TRUCK STOP, Employer

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:

The employee worked for approximately one year as a supervising manager for the employer, a business operating a gas station, convenience store, and truck stop. Her last day of work was February 10, 2007 (week 6).

During the absence of the other supervising manager of the employer, from January 5, 2007 through January 18, 2007, the employee worked 122.25 hours. She received her regular pay of $8.50 per hour for her normal schedule of 80 hours during those weeks, but she did not get overtime pay for the additional 42.25 hours she worked. The employee declined to pay her at time and one-half for those hours, wanted to pay her in cash at her normal rate of $8.50 per hour, and deducted a cash advance, movies for an order she placed with a distributor, and the amount of a bounced check. During a telephone conversation with the employee's husband, the employer's owner told him that the employee was fired. However, when the employee met with the owner on January 27, 2007 (week 4), the owner told her she was not in fact fired. She again asked to be fully reimbursed for the overtime she had put in. She was told that she had been fully paid. She then told the owner that she was giving two weeks' notice of her quitting, and her last day of work would be February 10, 2007 (week 6). She filed a wage claim with the Department of Workforce Development on or about January 29, 2007 (week 5). She worked through February 10, 2007 (week 5), turned in her keys, and did not return to work for the employer thereafter.

The employee asserted that she was discharged by the employer, when the owner told her husband she was fired. The employer asserted that she was not discharged, but quit her employment. The initial issue to be decided is whether the employee quit or was discharged.

The employer's owner specifically told the employee that she was not discharged during their meeting on January 27, 2007 (week 4). The employee made the decision to sever the employment relationship during that meeting when she gave her two weeks' notice of quitting. She worked out her remaining two weeks, and then handed over her keys as of February 10, 2007 (week 6). Under these circumstances, the employee was not discharged but voluntarily quit her employment.

The second issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

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 employer 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 employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employer's explanation for not paying the employee time and one-half for the overtime hours she worked was that it did not want anyone to work overtime, and other people were available to work the hours at regular time. However, whether the employer wanted the employee to work the hours, the fact is the employee did work the hours. The commission stated in Norton v. Industrial Tools Inc., UI Dec. Hearing No. 02604133WB (LIRC March 13, 2003):

In the petition for commission review the employer's attorney argues, without legal citation, that no employing unit is liable to an employee for overtime hours worked by the employee unless those hours were authorized or directed by the employer. The employer's attorney further asserts that the record is completely devoid of evidence that the employee was authorized to work any overtime hours for which he was not paid. These arguments fail. The administrative rule governing payment of overtime does not distinguish between types of overtime hours -- those authorized and those not -- but requires the employer to pay time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week. See Wis. Admin. Code § DWD 274.03. Moreover, contrary to the assertions made in the petition, the record does indicate that the employer authorized the employee to work overtime. The employer agreed that it paid its workers for a straight 40-hour week, although an employee might put in more or less hours. It is, therefore, clear that the employer did authorize employees to work in excess of 40 hours a week, and the employer acknowledged that it did so without paying them time and a half for those additional hours. While the employer's intention may have been to afford its workers greater flexibility in scheduling, it failed to follow the laws governing the payment of overtime wages, which resulted in the employee receiving less pay than what he was entitled. The commission agrees with the appeal tribunal that this situation, which the employee discussed with the employer prior to submitting his resignation, provided him with good cause for quitting.

As in Norton, the fact that the employer did not authorize the overtime does not change the fact that it is legally obligated to pay the overtime hours at time and one-half. While the commission does not condone an employee's disregard of an employer's directive not to work overtime, the fact remains that the employer is legally bound to pay the employee time and one-half for overtime hours. Again, as in Norton, the employee discussed the matter with the employer prior to her quitting. The commission does not require, as a prerequisite to finding good cause attributable, that the employee file, and await the resolution of, a wage claim. Finally, while an employer may be exempt from paying certain workers time and one-half for overtime hours, the employer did not assert or establish that it was exempted from paying the employee time and one-half for overtime hours worked.

The commission therefore finds that in week 6 of 2007, the employee voluntarily terminated her employment with the employer with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2007, if she is otherwise qualified.

Dated and mailed July 31, 2007
clapply . urr : 132 : 1 : VL 1059.206

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ who presided at the hearing prior to reversing the decision. The commission accepts the ALJ's factual findings but reached a different legal conclusion than that arrived at by the ALJ.

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