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

JENNIFER A ALBERTS, Employee

FOX CITIES LEARNING CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08403097AP


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 throughout most of her employment as a full-time co-director during her three and one-half years of work for the employer, a childcare center. She was paid $10.25 per hour. Her job duties included routine office work, ensuring that appropriate child/staff ratios were met, substituting for absent staff, assisting in coordinating staff meetings, some preparation of snacks, a small amount of cleaning and trash removal, supervision of subordinates, and administrative duties, such as arranging parent tours, collecting tuition payments, processing accident reports, etc. The director was her immediate supervisor. The team leader, who was a step lower than the employee in the official chain of command, basically had the same job description but was paid $9.50 per hour.

The owner and the director met with the employee and the team leader on October 22, 2008, to discuss the allegation that the employee failed to assist with the cleaning duties. The owner and director informed both of them that team work was expected. The owner and the director decided later that day to eliminate the employee's position and to demote her to a team leader position so the employee would have no valid arguments for failing to perform the same job duties as the team leader. Her shift and hours of work would remain the same but her wage rate was reduced to $9.50 per hour. Management notified the employee of the change on November 4, 2008. The employee quit her poison on November 7, 2008.

The substantially less favorable rate of pay for the team leader position is $10.05.

Wisconsin Stat. § 108.04(7)(e) provides that benefits shall not be denied to any otherwise eligible individual for refusing to accept new work if the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. New work includes an offer by an individual's present employer of different terms or conditions of employment. The team leader position at the reduced rate of $9.50 per hour constitutes new work.

The Department of Workforce Development use a "quartile" system in determining whether a condition of work is substantially less favorable. Essentially, if the condition in question prevails in less than 25% of similar work, the work is substantially less favorable than prevailing work in the labor market. These so-called labor standards "are minimum standards" and "apply to all denials of benefits for refusal of offers of or referrals to new work regardless of [the claimant's] reasons for refusing the job." Unemployment Compensation Program Letter Note. 130, p. 2 (January 6, 1947). This is because the purpose of the standards is not primarily directed at particular individuals, but rather is "to prevent the unemployment compensation system from exerting downward pressure on existing labor standards" (emphasis added). Id. at 3.

In this case, the wage rate offered the employee was substantially less favorable to her than prevailing for similar work in her labor market.

The commission therefore finds that in week 45 of 2008, the employee voluntarily terminated her employment 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 2008, if she is otherwise qualified.

Dated and mailed March 26, 2009
alberje . urr : 132 : 1 : VL 1059.201

/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 presided at the hearing regarding witness credibility and demeanor. The commission accepts the testimony of the department's labor market expert. The commission disagrees with the ALJ that the best evidence is from a department website regarding wage levels for child care workers in Winnebago and Calumet counties. "Similar work" is not limited to the childcare industry. Further, the labor market expert explained that the employee's position would be considered a general office clerk because that is the highest skill set of her position. That is, in order to replace the employee the employer could not simply hire an individual to perform childcare but would have to hire someone with the ability to perform the administrative duties performed by the employee.

cc: Attorney John Daniels


 

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