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

MICHAEL A MACKIN, Employee

WILLIAM DIETRICH PAINTING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201911RH


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 in weeks 40 and 41 of 2007. The employee is ineligible for benefits beginning in week 42 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 March 6, 2008
mackimi . usd : 135 : 8 VL 1005.01

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee contends that he provided the employer with ample opportunity to address his complaints before ending his employment. This argument, however, discounts the fact that a legitimate legal controversy existed concerning whether the employee's travel time was compensable. The employee's argument presumes his interpretation of the relevant wage law required compensation for the travel time therefore establishing that his quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

After reviewing the record, the commission is satisfied that nothing prevented the employee from continuing his employment with the employer and filing a wage claim with the appropriate governmental agency to resolve the existing wage dispute. Thus, while the employee may have had a personally valid reason for quitting, the commission cannot find that the employer was at fault in relation to the wage dispute at hand. The commission disagrees with the employee's argument that the employer's ultimate refusal to pay for the travel time establishes good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b) since a proper forum for this dispute existed and the employee failed to avail himself of this forum. The employee therefore failed to establish that his quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

Furthermore, the employee argues that he quit because in the latter part of 2006 the employer had banked hours for him rather than pay the employee on an overtime basis. This practice, however, ended when the employee objected to it, although the employee considered that he was penalized for his unwillingness to accept the banking hours' agreement. As the ALJ noted, avoiding paying premium wages by banking hours is an improper wage practice. However, the point when the employer discontinued this practice was too remote from the employee's decision to quit that the commission is unable to conclude that the employee was penalized by virtue of his unwillingness to accept the banking hours' arrangement.

 

cc: Attorney Christopher M. Toner



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