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

AMY D GILLIS, Employee

AMERICAS BEST FLOWERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001953MD


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 eligible for benefits beginning in week 15 of 2007, if otherwise qualified.

Dated and mailed August 27, 2007
gilliam . usd : 164 : 1  SW 855

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that the employee did not quit because of variable shifts and never indicated that the hours of work were a problem. However, as the commission noted in Schulenberg v. Yellow River, Lic., 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 Co:mmission 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."

Thus, a non-prevailing shift provides the employee with good cause to quit a job within the first ten weeks, whether or not the employee raises the issue.

The only exception is when an individual actually prefers a non-prevailing shift. Moore v. United Parcel Service Inc. (LIRC, Nov. 6, 2003). Here, while the employee did not object to the hours and stated that she could work "any" hours, she did not actually express a preference for rotating shift work. Consequently, where the certified labor market evidence indicates that the hours of work were substantially less favorable than for similar work in the labor market, the employee had good cause to quit. The appeal tribunal decision is, therefore, affirmed.



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