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

BONNIE J HAZELQUIST, Employee

IOD INCORPORATED, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201195EC


On June 28, 2007, the Department of Workforce Development issued an initial determination which held that the employee had quit her employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing, and hearing by teleconference was held on July 23, 2007 in Eau Claire, Wisconsin before a department administrative law judge. On July 27, 2007, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the record and the applicable law, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately seven months as a customer service representative for the employer, a medical information release concern. The employee quit her employment on June 13, 2007 (week 24), and the issue is whether she did so with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). The commission concludes that she did, and so reverses the appeal tribunal decision.

The employee's employment with the employer arose from a job posting on the Internet. The posting indicated that the job would be part time, 20 hours per week. The posting also indicated that the applicant would have to be able to work more hours if the workload was high. At hire, the employee received an informational sheet about the job, which indicated that the employee's classification status was part time, less than 20 hours per week, with no eligibility for holiday pay or other paid time off. At the time the employee received the informational sheet, however, the employee's supervisor told the employee that she would check on the employee's status to make sure the employee received benefits. In other words, the supervisor was telling the employee that she would reclassify the employee's status to one where the employee received benefits provided by the employer for employees who worked 20 or more hours per week. Those benefits include pro-rata paid time off and holiday pay.

The employee took vacation May 15-23, 2007, believing it would be paid time off. Upon her return, and discovery that her supervisor had never reclassified her to 20 hours per week and above status (so that the employee's time off would have been paid time off), the employee quit her employment.

A voluntary quit of employment generally disqualifies one from immediate eligibility for unemployment insurance. An exception to the general disqualification is Wis. Stat. § 108.04(7)(b), a quit "with good cause attributable to the employer." The employer's failure to reclassify the employee's job status meets this standard. The employer's work manual allows benefits for employees "who are regularly scheduled for 20 hours a week or more." It indicates as well that employees "will be classified by their managers as their status changes." The employee was scheduled for 20 hours per week every week of the year and she worked, on average, more than 5 hours per day every day she worked. She missed one day in each of the first two pay periods of the year, one due to January 1 and the other due to a tooth extraction the previous afternoon. When those instances are accounted for, the employee worked on average at least 5 hours per day every day she worked, and that should have triggered a change in the employee's job status and resulting eligibility for pro-rata benefits. In addition, finally, the employee's supervisor told the employee that she would change the employee's status in order for the employee to be eligible for those benefits. This failure was a substantial and unreasonable one on the employer's part, and justified the employee's quit.

The commission therefore finds that, in week 24 of 2007, the employee voluntarily terminated her employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 24 of 2007, if she is otherwise qualified.

Dated and mailed November 16, 2007
hazelbo . urr : 105 : 1 VL 1005.01

/s/ James T. Flynn, Chairman

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge did not fully credit the employee's testimony, believing that the employee had a one-track mind as to the scheduled hours per week for the position (based upon the Internet posting). The commission has credited the employee's testimony because much of the undisputed evidence backs it up. First, the Internet posting indicates that the job would be for 20 hours per week, and not fewer than 20 hours per week. Second, in fact the employee did work more than 20 hours per week and, by the employer's own work rules, that should have triggered a reclassification of the employee's status. Third, the employee's supervisor herself testified that the employee should have been able to perform her job duties in 20 hours each week. That in itself should have rendered the employee eligible for pro-rata benefits, again by the employer's own rules.

 


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uploaded 2007/11/28