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

KAREN J MILLIGAN, Employee

HEALTHCARE SERVICES GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07606570MW


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, except that it makes the following modifications:

(1) Add as the last sentences of the fifth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW the following:

"However, the employee did not miss any work in week 38 of 2007 due to her quitting. The employee's quit was effective in week 39 of 2007."

(2) In the ninth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW and in the DECISION paragraph delete "week 38 of 2007" and insert therefor "week 39 of 2007."

(3) Delete the tenth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW.

(4) Delete the last sentence of the DECISION paragraph.

(5) Delete the NOTE.

DECISION

The decision of the administrative law judge is amended as to the week of issue, modified to conform to the above finding and, as amended and modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 39 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 December 7, 2007
millika . usd : 132 : 1    MC 627  VL 1007.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found the employee voluntarily terminated her work and not for any reason permitting immediate benefit payment. The employee asserts that she was discharged when the employer told her that if she could not work on September 17 she might as well not come in to work the rest of the week. However, the employee had previously given the employer notice that she was quitting effective September 20.

The ALJ found that the fact that the employer did not permit the employee to work the rest of her "notice period" did not alter the nature of the separation as a quitting. The ALJ's decision is based on court and commission decisions dating back 40 years originating with Alberta Story v. Thrift Drug Company of Pennsylvania, (LIRC May 18, 1967). Starting with the Story decision, the courts and commission have held that where an employee gives notice of quitting that is accepted by an employer, and the employer does not allow the employee to work out the notice period, the employee is eligible for benefits until the time that the resignation would have become effective, unless there was intervening misconduct on the part of the employee.

In Story, the employee notified her employer that she was quitting but would work until October 29 to enable the employer to find a replacement. The employer stated that if the employee was quitting she should leave immediately. The employee alleged that because she was not permitted to work until October 29, she did not quit but was terminated. The commission disagreed. The commission reasoned that the employee terminated her employment on the date she gave notice and the fact that the employer did not allow her to work through the notice period did not alter the fact that the relationship ended due to the employee's resignation and the employer's acceptance of that resignation. However, since the employer refused to permit the employee to work through her notice period, it incurred liability for unemployment benefits for the period before the quitting became effective.

Thus, generally, when an employee gives a specific date of quitting, but the employer does not allow the employee to work until that date, the separation remains a voluntary termination by the employee. (1)   The employer has merely accelerated the employee's last day of work. However, if it is established that the employer accelerated the employee's last day of work due to actions on the part of the employee that amount to misconduct, the employee is ineligible for benefits from the date of discharge. See, e.g. Boehm v. Downtown TV, (LIRC June 29, 1989).

In this case, at the most, the employer's statement to the employee merely accelerated the employee's last day of work. While the employer had reason to be suspicious that the employee was not really ill on September 17, it did not establish that the employee engaged in actions after submitting her resignation notice that would rise to the level of misconduct connected with her work. However, nor did the employee establish that she quit her employment for any reason that permits immediate benefit payment.

The employee gave notice that her last day of work would be September 20, 2007 (week 38). The employee would not have missed any work for which she was scheduled in that week due to her quitting. The employee's quitting was therefore effective as of week 39 of 2007. Accordingly, the employee was not overpaid benefits in week 38 of 2007 due to her quitting.



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Footnotes:

(1)( Back ) The Story decision was followed in Fleischman v. LIRC and Custom Interior Solutions, Inc., Case No. 04-CV-004489 (Wis. Cir. Ct. Milwaukee Co., December 13, 2004): Ramirez v. Ho Chunk Nation, (LIRC June 14, 2002); Kerlin v. Executive Mortgage LLC, (LIRC March 6, 2002); Burns v. Schneider National Carrier's, Inc., (LIRC December 27, 1999); Jorenby v. Field Silo & Equipment Inc., (LIRC June 11, 1998); Hoyt v. Wisconsin Bell, Inc., (LIRC February 16, 1996); and Wyman-Murphy v. Warren Lee Brandt (LIRC January 28, 1991).

 


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