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

DARLENE V KECA, Employee

JOHN BRANDT SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08600951MW


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, except that it makes the following modification:

Replace the ninth, tenth and eleventh paragraphs under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

In this case, a labor market analyst testified that the proper job classification for the employee's work for the employer was "Accounting Clerk." The employee's rate of pay was not substantially less favorable when compared to similar types of work in the labor market. Additionally, while the retirement benefit package that she received from the employer was arranged differently than the package she had in her prior employment, the record does not reflect that it was substantially less favorable. Specifically, the labor market analyst testified that retirement benefits were offered to most workers similarly situated to the employee but that no data was available on waiting periods or the type of plans that might be more prevalent than others. Finally, the labor market analyst testified that at most five percent of employers would require such workers to sign a non-compete agreement. Thus, the requirement that the employee sign the non-compete, regardless of the specific terms, was a condition that was substantially less favorable to the employee than similar types of work.

The appeal tribunal therefore finds that the employee accepted work in week 51 of 2007 that she could have refused under Wis. Stat. § 108.04(9) and that she voluntarily terminated that employment in week 3 of 2008 within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

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

Dated and mailed July 31, 2008
kecada . umd : 150 : 8 VL 1034 : VL 1080.05

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision and the commission remanded the matter for labor market testimony regarding the wages, hours and other conditions of similar types of work for the employee in her labor market. The commission modified the appeal tribunal decision based upon the information obtained at the remand hearing but ultimately affirms the decision that the employee is eligible for benefits for the reasons stated in the modification language.

The petitioner's brief cites two cases to support its claim that the employee should be ineligible for benefits on the grounds that the employee did not have "good cause" under Wis. Stat. § 108.04(7)(e). Yet the commission believes some clarification is necessary. Specifically, the term "good cause" is found in two separate statutory quit exceptions. The cases cited by the petitioner deal with whether the claimant's quitting fell within Wis. Stat. § 108.04(7)(b), the quit with "good cause attributable to the employing unit" exception. In determining whether the non-compete constituted good cause attributable to the employing unit, the commission analyzes the reasonableness of the agreement. Ernst v. Tom-Cin Metals Inc., UI Dec. Hearing No. 03402091AP (LIRC January 14, 2004). However, this analysis is unnecessary as the commission finds that the quit exception found at Wis. Stat. § 108.04(7)(e) applies.

In particular, Wis. Stat. 108.04(7)(e) applies to quits that occur within the first ten weeks of employment. There are two subcategories within this provision, a quit with the "same good cause" under Wis. Stat. 108.04(8)(1) and a quit under the protection of labor standards within the meaning of Wis. Stat. 108.04(9).(2) Given the labor market evidence that 95% of the accounting clerk positions do not require a non-compete agreement, the employer's requirement that she sign such an agreement is a substantially less favorable condition; the reasonableness of the agreement is not material to this exception. Since the employee quit within the first ten weeks of employment because of the non-compete and this was a substantially less favorable condition for her, her quitting falls within this exception found at Wis. Stat. § 108.04(7)(e).

Finally, while this case is not being decided under Wis. Stat. § 108.04(7)(b), the commission notes the following with respect to the cases cited in the petitioner's brief. First, the commission's Hurckman decision was reversed by the Dodge County Circuit Court, finding that the quitting was with good cause attributable to the employing unit. See Hurckman v. LIRC and B & M. Transport, Case No. 03 CV 241 (Wis. Cir. Ct., Dodge County, July 24, 2003). Further, although in the second case, King v. De Riah Ltd., UI Dec. Hearing No. 06601843WB (LIRC September 15, 2006), the commission found that the non-compete agreement did not provide the claimant with good cause attributable to the employing unit for quitting her job, this case is distinguishable from the facts at hand because that claimant was already working under a similar agreement.


cc: Attorney Tricia L. Feiertag


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Footnotes:

(1)( Back ) Good cause will be found if the quit involved work at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs and the employee had not yet had a reasonable opportunity, not to exceed six weeks, to seek a new job substantially in line with the claimant's prior job skill and rate of pay. See Wis. Stat. 108.04(8)(d).

(2)( Back ) Wis. Stat.   108.04(9)(b) prohibits denial of benefits if the wages, hours or other conditions of the work are substantially less favorable than those prevailing for similar work in the locality.

 


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