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

JOHNNIE COLLINS, Employee

A 1 TRANSPORTATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08606256MW


An administrative law judge (AU) 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, arid it has reviewed the evidence submitted to the AU. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately one year and one month, most recently as a driver, for the employer, a transport business. His last day of work was July 11, 2008, and he voluntarily terminated the employment on July 14, 2008 (week 29).

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

During the employee's employment the employer changed the day of the week on which the employee was to be paid. The employee would take his paychecks to the bank but could not cash them. At times, the employee would resubmit the checks until they could be cashed. The employee was riot able to cash his checks because the funds the employer put in its account had a five-day hold on them. At other times, the employee returned the check to the employer who would write a check from its personal account. One paycheck the employer paid with a starter check which the employee had to take to the employer's bank and had to pay a fee to get it cashed. That check did not list deductions taken out of the employee's pay but merely contained a note "taxes $130." The employee quit his employment over a dispute regarding whether the employer owed him additional money and because of the employer's failure to pay him timely.

Wisconsin Statute § 108.04(7)(a) 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. 0600l035JF (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.

In this case, the employee established that on more than one occasion he could not cash his paycheck because there was a hold on the funds in the employer's account. The employer was aware of such hold. It was the employer's obligation to ensure it had money over the held amount to satisfy its payroll. The employee is not required to make multiple attempts to get his paycheck cashed from the bank or the employer.

The commission therefore finds that in week 29 of 2008, 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 29 of 2008, if he is otherwise qualified.

Dated and mailed December 12, 2008
collijo . urr : 132 : 1 : VL 1059.07

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that neither the employee nor the employer was a good historian. The ALJ credited the employee's testimony that he had problems getting paid. The ALJ indicated that the employee was less articulate but more credible than the employer. The commission agrees with the ALJ 's credibility assessment. It disagrees with the ALJ 's reasoning that the employee had to inform the employer that he was quitting, where, as here, the employer was aware that the employee could not cash his paychecks when he presented those checks to the bank.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2009/01/26