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

JOHN C RINEHARD, Employee

MARTIN TRUCKING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001999LX


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2007, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed August 13, 2007
rinehjo . usd : 132 : 8   VL 1059.201

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that found he voluntarily terminated his employment and not for any reason permitting immediate benefit payment. The employee argues that he had good cause attributable to the employer for quitting based on the substantial wage reduction caused by his inability to perform his customary work for the employer. The employee argues that there is no requirement that the employer have some ill will in reducing the employee's wages. However, as the ALJ noted, the courts have held that to constitute "good cause attributable to the employer" for quitting, the employee's reason must relate to a real, substantial, and unreasonable act or omission on the part of the employer. The commission does in fact look at the reason for the reduction, and not simply the amount of the reduction, in determining whether the quitting was with good cause attributable to the employer. Here, the employee's wages were reduced because he was restricted to working only four hours per day, along with other restrictions. Due to those restrictions, the employee was unable to perform his usual work for the employer. The evidence also indicates that the employer attempted to find other work for the employee. The employer was not required to create a new position to fit the employee's physical abilities.

The employee also cites Wis. Stat. § 108.04(7)(cm), which provides that the quit disqualification does not apply if the employee terminates his work rather than accept transfer to a shift, other than the one for which he was hired, and which would result in a lack of childcare for his children. However, the employer did not transfer the employee to a different shift. The employer did not require the employee to work on the weekends or after 4:00 p.m. and the employer did not discipline the employee for declining such work. The employer simply offered the employee the opportunity to increase his wages by working on the weekends and after 4:00 p.m.

cc: Attorney Ronald M. Fitzpatrick



Appealed to Circuit Court. Affirmed April 28, 2008.   [Summary of Circuit Court decision]

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uploaded 2007/08/20