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

TAMRA K WEISENSEL, Employee

MOSAIC SALES SOLUTIONS
US OPERATING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002861MD


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 part-time for the named employer, Mosaic Sales. She also worked part-time for Gugger and full-time for Goodwill.

While working all three jobs the employee gave notice to Mosaic Sales on or about February 3, 2007 (week 5) that she was quitting. Her last day of work for the Mosaic Sales was May 3, 2007 (week 18).

In March of 2007, the employee told Goodwill she was quitting but then rescinded her notice. A separate appeal tribunal decision found that the employer had agreed to the rescission and, therefore, when Goodwill later notified the employee that her resignation had been accepted, Goodwill had discharged her. Her last day of work with Goodwill was April 26, 2007 (week 17).

Wisconsin Statute § 108.04(7)(o) provides that the quit disqualification does not apply to an employee who terminates work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates her work before receiving notice of termination from a position which consists of more than 30 hours per week.

In Ludwig v. Moraine Park Vocational Adult Education District, (LIRC January 23, 1998) and Martinson v. Town of Butler Clark County, (LIRC April 27, 2007), the commission noted that the time notice is given, and not the last day of work, determines whether the quit of the part-time position falls within the quit exception of Wis. Stat. § 108.04(7)(o). The department also only requires that the employee have given notice of the quit prior to receiving notice of termination from the full-time employment. See Disputed Claims Manual, Vol. 3, Part VII, sec. IV.

In this case, for purposes of applying Wis. Stat. § 108.04(7)(o), the employee quit her part-time work for the employer before receiving notice of termination from her full-time employer.

The commission therefore finds that, in week 18 of 2007, the employee terminated her work in one of two concurrently held positions, at least one of which consisted of more than 30 hours per week, before receiving notice of termination from her full-time employer, within the meaning of Wis. Stat. § 108.04 (7)(o).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2007, if she is otherwise qualified. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed September 21, 2007
weiseta . urr : 132 : 1 : VL 1020

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission's reversal is not based on credibility but on reaching a different legal conclusion when applying the law to the facts.


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uploaded 2007/10/08