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

KATHRYN  L  LYP, Employee

GOLDEN EAGLE LOG HOMES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003925WR


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed February 13, 2008
lypka . usd : 135 : 8  VL 1007.01  VL 1054.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer contends that the employee quit when she submitted a request for a voluntary reduction of hours to attend school and that the ALJ erroneously concluded that Wisconsin Stat. § 108.04(7m) did not apply.

Wisconsin Stat. § 108.04(7m) provides: "An employee whose employer grants (emphasis added) the employee's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of sub. (7)." The statute does go on to state that wages earned by the employee from that employer for any week in which the reduction requested by the employee is in effect may not be used to meet the qualification requirement provided that the employer has notified the employee in writing, prior to the time that the request is granted. The statute contemplates an employment relationship where an employer has granted an employee's request to reduce his or her full time hours to part time hours. Here, the employer never granted the employee's request to reduce her full time hours to part time hours thereby rendering Wisconsin Stat. § 108.04(7m) inapplicable in this case.

The issue therefore is how the employment relationship ended. The employer argues that it did not discharge the employee but rather she quit when she submitted her request for a voluntary reduction in hours to attend school. The commission agrees that such a request, if granted by the employer, would be deemed a quit under Wisconsin Stat. § 108.04(7m). However, the employer did not grant the employee's request for a reduction in hours. Instead on August 17, 2007, in writing, the employer informed the employee that it did not have a need for part-time work in the accounting department and concluded that the employer would welcome the employee's application if she would like to return to work for it in the future. The employee believed she was discharged and left the employer's premises never to return to work again for the employer.

Although an employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated "I quit," an employee however must demonstrate an intent to leave his or her employment by word or manner of action, or conduct inconsistent with the continuation of the relationship. Nottelsen v. ILHR Dept., 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980).

The employer's August 17, 2007 letter was in response to the employee's request to change her full time schedule to part-time to attend school in August. The employee's notice however did not unequivocally or unconditionally state that she was leaving, quitting or reducing her hours. The employer could have clarified the employee's intentions merely by denying her request, leaving the employee with the choice of starting school or keeping her full time job. Rather, the employer accepted a resignation that the employee had not clearly tendered at that time. Under these circumstances, the employer was the moving party in the employment separation when it discharged the employee. Furthermore, the employer did not establish that the employee's discharge was for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

cc: Attorney Gregory J. Jerabek


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