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

MICHAEL C CONNOR, Employee

HOMEWARD BOUND HOME HEALTH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08002820MD


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 the employer, a home health service, for four months as a personal care worker. His last day of work was March 29, 2008 (week 13).

The employer's personal care workers are responsible for completing documents called "flow sheets." The employer has a written policy regarding flow sheets, which provides, as follows:

Flowsheets must be accurate, based on your nursing assignment sheet. You must turn in your flowsheets each Monday with your timesheets. The supervising RN will address any questions on the assigned task. Flow sheets are checked for accuracy on a weekly basis. It is your responsibility to ensure that your charting is correct. . . If mistakes are made, it is your responsibility to come to the office to correct those errors. All flowsheet corrections must be completed prior to paycheck processing.

The employer mails paychecks out on alternate Fridays, unless there are problems with an employee's documentation, in which case the employer holds the check in the office until the employee comes to correct the documentation.

The staff supervisor is available in the employer's office every Monday morning between the hours of 9:30 a.m. and 12:00 p.m. for workers who need to make corrections to their documentation. Workers who come in on their day off to make corrections are not paid for their time.

The employee lives in Sparta, WI, and commuted 51 miles each way to the employer's office in La Farge, WI. Monday, the only day on which the employee's supervisor was in the office, was the employee's day off. The employer was unwilling to pay the employee for his time spent driving to the office on Monday and correcting the time sheets. The employee asked the employer if it could mail the documents to him so he could make corrections, but the employer refused. The employee also asked if he could come in on a different day than Monday, but the staff supervisor stated she could not make special trips for people. The employee requested that the employer leave the documents in the office with the human resources director, so the employee could make his corrections on a work day. For a time the employer permitted him to do so, but it decided to discontinue the practice. No explanation was provided for this decision.

On April 3, 2008, the employer suspended the employee's employment because the employee had failed to come in on his day off to make corrections for two consecutive weeks. The employee was told he could return to work after he reported to the office to correct his paperwork.

On April 7, 2008, (week 15) the employee called the employer and stated that he was quitting due to the flow sheet correction policy. The employee explained that he refused to come in to fix flow sheets on his day off. The employer indicated that this was part of its policies and that it could not make an exception for him. On Monday, April 14, 2008, the employee reported to the employer's office. He collected two paychecks and left.

The issue to decide is whether the employee quit or was discharged, and whether he is eligible for benefits based upon that separation.

Although the employee's employment was temporarily suspended by the employer, he could have returned to work by coming in and providing corrections to his flow sheets. The employee chose not to do so and informed the employer he was quitting on April 7, 2008 (week 15).

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employer required the employee to report to work on his day off on a regular basis in order to make corrections to his documentation. The employee's paychecks were not issued until the corrections were made. The employee, who lived 51 miles away from the employer's office, was not paid for the time spent driving to and from the office, nor for the time spent making corrections. The employee proposed several reasonable alternatives that were rejected by the employer. The employer did not explain why it could not have mailed, faxed or e-mailed the documents to the employee to correct, nor did it explain why it could not continue to leave the paperwork with the human resources coordinator so that the employee could make corrections on a day he was scheduled to work. The commission believes that the employer's requirement that the employee take unpaid time on his day off to travel to the workplace and make corrections to the employer's documentation was so unreasonable as to provide the employee with good cause for quitting.

The commission, therefore, finds that in week 15 of 2008 the employee voluntarily terminated his work with the employer, and that his quitting was 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 modified as to the week of issue and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 15 of 2008, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed October 31, 2008
connomi . urr : 164 : 9 VL 1080.05

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not confer with the appeal tribunal about witness credibility and demeanor. The commission's reversal is not the result of a differing assessment of witness credibility, but is as a matter of law. The appeal tribunal decision was premised on findings that the employee could have made corrections and received his paychecks at any time he could meet with the supervisor and that the employee did not attempt to pursue the matter further with his supervisor. These findings are not supported by the record. The record indicates that the employee suggested several alternatives to reporting to the office on Monday, but the employer was unwilling to consider any of them.


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