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

MARTIN K HEINZ, Employee

ABC EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07004586JV


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 as an over-the-road truck driver for the employer, a freight transportation company, for just over two years. His last day of work was September 20, 2007 (week 38).

The employee's driver's license was suspended in Illinois. Consequently, the employee could not drive in Illinois without running the risk of jail time for driving without a valid license. Shortly after he began working for the employer the employee requested that he not be sent on routes that took him through Illinois. The employer complied with this request for two years. During this period the employee retained an attorney to resolve the issue and attempt to get his license restored.

Sometime in August of 2007 the employer's dispatcher left, and was replaced by a new dispatcher who began dispatching the employee through Illinois. The employee explained to the new dispatcher that his license was suspended, and requested that he not be dispatched through Illinois. The dispatcher stated he would discuss the matter with higher management. He later reported to the employee that he had been instructed to dispatch him through Illinois.

The employee drove through Illinois a few times, but was concerned that he would be jailed for doing so with a suspended license. Based on those concerns, he tendered his resignation on September 20, 2007.

The issue to decide is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee could not legally drive in the State of Illinois because his driver's license was suspended. The employer had been able to dispatch him on trips that did not go through Illinois for a prolonged period of time, and failed to appear at the hearing to explain why it could no longer do so. The employer altered the terms of the employment relationship by requiring the employee to drive through Illinois, subjecting him to the risk that he would be jailed for driving with a suspended license. This action on the part of the employer, for which no explanation was offered, provided the employee with good cause to quit.

The commission therefore finds that in week 38 of 2007, the employee voluntarily terminated his work with the employer, and that his quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 38 of 2007, provided he is otherwise qualified.

Dated and mailed January 24, 2008
heinzma . urr : 164 : 9  VL 1080.02

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility. Rather, the commission has reached a different conclusion when applying the law to the uncontroverted evidence in the record, without speculation as to the evidence the employer would have offered had it appeared.

 

cc: ABC Express Inc., Beloit WI


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