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

NICOLAS R GARDNER, Employee

DUFOUR MASONRY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07005295BO


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 for approximately one year and five months as a brick layer for the employer, a masonry business. His last day of work was November 6, 2007 (week 45).

The employee was instructed by the owner of the business to delay cashing six or seven paychecks between April and November, 2007, because the owner had not yet received payment from builders. At times, the employee would not be paid for a period of three to four weeks. Although the employee was unhappy with this arrangement, he never informed the owner of his concerns. The employee was absent from work between October 26 and November 5, 2007. When the employee returned to work on November 6, 2007 (week 45), the employee was given a paycheck but advised not to cash the check until later that week or early the next week. The employee responded, "That's fine." However, later that day, the employee informed the job superintendent that he was quitting because he "was not getting paid." The job superintendent accepted the employee's resignation and the employee never returned to work thereafter. The owner had additional work available for the employee to perform through the second week of December, 2007.

The issue to be decided is whether the employee quit or was discharged and, depending on the nature of the separation, whether the employee was eligible for unemployment insurance benefits.

The employee contended that he was discharged by the employer. This contention cannot be sustained. The employee was the moving party in the separation of employment. As such, the employee voluntarily terminated his employment. He was not discharged.

Wisconsin Statute § 108.04(7) provides that a worker who voluntarily terminates employment is ineligible for unemployment insurance benefits unless the quitting falls within one of the enumerated statutory exceptions. One such exception is if an employee voluntarily terminates employment with good cause attributable to the employing unit. See Wis. Stat. § 108.04(7)(b). In Zahn v. Brooke Builders, Inc., UI Dec. Hearing No. 06001035JF (LIRC July 27, 2006), the commission found that an employer's failure to pay a worker in a timely and complete manner was so egregious as to give the employee good cause attributable for the quitting. Further, in allowing unemployment insurance benefits, the commission stated:

While the employee did not explicitly inform the employer that he would quit because of the employer's continuing payroll problems, it was not necessary to bring this up to the employer in this case because the employer was already aware that this was happening. The owner was or should have been aware that the failure to pay the employee his wages was unacceptable, even without being told.

Similarly, the owner in this case was obviously aware of the payroll difficulties as he himself was directing the employee not to cash his paychecks. The employee was entitled to timely payment for his services and his quitting was a reasonable reaction to the employer's repeated failure to pay him timely. Thus, his quitting was with good cause attributable to the employer.

The commission therefore finds that in week 45 of 2007, the employee voluntarily terminated his work 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 45 of 2007, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 26, 2008
gardnni . urr : 150 : 1   VL 1005.01 VL 1059.07

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge prior to reversing the appeal tribunal decision in this matter. In particular, the reversal is not based upon a differing credibility determination but is based upon the commission's reaching of a different legal conclusion on the same facts as found by the appeal tribunal.

 

cc: Attorney Carrie Benedon


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