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

CYNTHIA J REISS, Employee

PRO CLEAN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402644AP


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 remanded this matter for further testimony. Further hearing took place on February 5, 2008.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked three years as a counter helper for the employer, a dry cleaning business. Her last day of work was on October 21, 2007 (week 43).

The employee worked for the employer in Sheboygan, Wisconsin. She worked on average 8 to 16 hours per week for the employer earning $7.85 per hour. The employee worked two four-hour shifts during the workweek and a fixed rotating weekend schedule with three other workers during which she worked five hours. Every third week she could work an additional eight hours on Sunday. The employer was located less than a mile from the employee's residence in Sheboygan.

The employee worked full time for another employing unit for seventeen years. The other employing unit laid the employee off as of September 21, 2007. The employee's husband also worked for the other employing unit and was likewise laid off. He found a job in Marinette County, Wisconsin, which he began on September 20, 2007. The employee gave the named employer two weeks notice that she was quitting effective October 21, 2007 (week 43).

The employee and her husband relocated to Crivitz, Wisconsin, which is 125 miles from Sheboygan. On November 1, 2007, the employee and her husband moved to Coleman, Wisconsin, which is 103 miles from Sheboygan.

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

If an employee quits work with an employer, the employee is ineligible for immediate benefit payment pursuant to Wis. Stat. § 108.04(7)(a), unless the employee establishes that her quitting falls within one of the statutory exceptions to the quit disqualification contained in paragraph (a). The only statutory exception that would potentially apply to the employee's situation is that found in Wis. Stat. § 108.04(7)(k), which provides:

Paragraph (a) does not apply to an employee who terminates his or her part-time work consisting of not more than 30 hours per week if the employee is otherwise eligible to receive benefits because of the loss of the employee's full-time employment and the loss of the full-time employment makes it economically unfeasible for the employee to continue the part-time work.

Wis. Admin. Code § DWD 132.03(3)(b) provides as follows:

To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part-time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work.

Wisconsin Statute § 108.04(7)(k), does not direct the department to define the term "economically unfeasible" by rule. See, for example, Wis. Stat. § 108.04(2)(b). Nothing indicates that work can only be deemed economically unfeasible if it meets a formula set forth by the department. More importantly, the department's own rule does not reflect that meeting the formula contained therein is the only means by which work can be deemed economically unfeasible. Wis. Admin. Code DWD § 132.03(2) provides:

Scope. Under s. 108.04 (7) (k), Stats., a claimant who terminates part-time work is not disqualified from receiving benefits under s. 108.04 (7)(a), Stats., if the claimant is otherwise eligible to receive benefits because of the loss of the full-time work and this loss makes it economically unfeasible to continue the part-time work. This section specifies the circumstances under which a claimant may meet the requirements under s. 108.04 (7) (k), Stats.

(Emphasis added.)

The use of the word "may" in Wis. Admin Code DWD § 132.03 (2) indicates that it is not intended to be the exclusive means by which work can be found economically unfeasible.

This is a case where the employee (and her husband) lost long-term employment through no fault of her own. The employee's husband diligently sought work and found employment more than one hundred miles away from the employee's part-time work. The commission does not believe that the Legislature intended in a case like this, that the employee should have to retain her 10 to 15 hour per week job, and commute round trip over 200 miles a day, three times a week, in order to be eligible for benefits. Nor does the commission believe the Legislature intended that the employee should incur such expenses before she can be deemed eligible under Wis. Stat. § 108.04(7)(k). The employee quit when she knew she would be relocating. She would not have relocated but for the loss of her full-time employment. The employee would be traveling over six hundred miles a week to make a maximum of just over $125. The expenses the employee would have incurred were not theoretical or potential, but inevitable. Common sense and the price of gas render continuing such employment economically unfeasible.

The commission therefore finds that in week 43 of 2007, the employee voluntarily terminated part-time work consisting of not more than 30 hours per week with the named employer because the loss of the employee's full-time employment made it economically unfeasible to continue this part-time work, within the meaning of Wis. Stat. § 108.04 (7)(k).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 43 of 2007, if she is otherwise qualified.

Dated and mailed March 21, 2008
reiscy3 . urr : 132 : 1 : VL 1039.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who issued the decision in this case regarding witness credibility and demeanor. The facts are not in dispute in this case. The commission's reversal is based on additional information provided at the remand hearing and its legal conclusion that Wis. Stat. § 108.04(7)(k) applies in this case. The commission acknowledges that in the past it has used the administrative code as the means of determining whether continuing work is economically unfeasible. This case led the commission to reconsider the actual language of the statute and code. In doing so, the commission has also kept in mind that unemployment insurance legislation is remedial in nature. As such, it should be liberally construed. As indicated above, the wording of the statute and code do not indicate that the formula in the code is the only basis for finding that continuing in part-time employment is economically unfeasible.

[Editor's Note:  2013 Wis. Act 20 section 1717L repealed the prior statutory exception for a quitting of part-time employment when the loss of full-time employment makes continuation of the part-time employment economically unfeasible.  See Statezny v. Gameday Sportsbar Inc., UI Dec. Hearing No. 16200843EC (LIRC Apr. 21, 2016)]


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