HEATHER M KIRSCH, Employee

CASUAL MALE RETAIL STORE LLC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 17 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 October 9, 2007
kirshhe . usd : 178 : 6   VL 1080.22

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In her petition for commission review, the employee argues that she quit her job due to concerns about her personal safety. It argues that the employer was aware of the problems and contributed to them by reducing staffing.

Voluntarily termination based solely on a belief that a particular job is dangerous does not rise to the level of good cause attributable to the employer. Brewer v. Wells Fargo Armored S.C., LIRC decision dated December 10, 1993; Thimm v. Pieper Electric, LIRC decision dated December 7, 1990. Employees who quit over safe environment concerns often fail to establish good cause attributable to the employer for quitting. In Thimm, a female electrician requested the employer assign her to work on the Milwaukee Public Schools contract in areas she deemed safe. The employee quit when the employer could not accommodate her. The commission found no act or omission by the employer that constituted a fault. The Commission concluded that the employee's concerns about crime in the neighborhoods, although real to her, were unsubstantiated. Hammerer v. Superamerica Group Inc, U I Hearing No.93603196MW (LIRC Jan. 21, 1994).

In contrast, good cause was established in Peterson v. R & L Management Company, U I Dec Hearing No. 92604536MW (LIRC Apr. 1, 1993), where a cashier at a check cashing business in a high crime neighborhood witnessed several robberies and was present when an individual was shot and killed outside the store. The Administrative Law Judge found that the employee was not safe while she closed the shop and when she had to leave the building and lock it up. Additionally, the employee exhausted all reasonable alternatives short of quitting but her safety concerns were not properly addressed by the employer, despite its expensive bulletproof cage and alarm system.

Mere fear for one's personal safety will not support a finding of good cause attributable. The employee must show some factual basis for the fear. In this case, the employee had witnessed no violent crime nor had she been the victim of any crime related to her work for the employer. The store was a shoplifting target. The employee did not like to work there alone. She got a bad feeling about a particular customer but nothing threatening actually occurred while he was in the store. Under the circumstances, the employee's case is more like Thimm and Brewer than Peterson. The employee quit because she felt unsafe but she has not established that she actually worked in an unsafe environment and that the employer failed to take reasonable steps to protect her. The employee made a reasonable personal decision to quit, but her reasons do not fall within any exception permitting the immediate payment of benefits. Therefore, the commission affirms the appeal tribunal decision.

cc: Attorney Chris Clemens

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uploaded 2007/10/22