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

MICHAEL A CONAGHAN, Employee

MARSHALL FINANCIAL GROUP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09002089MD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 32 of 2008, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $3,259.00 to the Unemployment Reserve Fund.

Dated and mailed September 30, 2009
cohagmi . usd : 178 : 1    VL 1038 VL 1059.20 VL 1034

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the employee argues that the change in his compensation from salary to solely commission constitutes a unilateral change in the employment and good cause for quitting. In support of this argument, the employee argues that the commission he received was actually based on business he generated prior to the compensation change in April and the only reason that he remained employed during the next four months was so that he would be eligible to receive the commission when the loan finally closed. Finally, the employee argues that he should not be required to repay overpaid benefits because he did not fail to notify the department that he quit.

Because the employer initiated a substantial change in the employee's compensation from salary to straight commission, the employee might have quit immediately and the commission could very well have found good cause. However, the employee did not immediately quit but continued to work for four months. Due to the same significant change in the terms and conditions of his employment, this would render this employment new work and under the provisions of Wis. Stat. § 108.04(7)(e). The employee could have tried it for 10 weeks and then quit with the same good cause with which he might have refused it begin with. Instead the employee waited four months. He explains that remained with the employer because he knew that he had a good commission in the works and he needed to remain employed to receive it. This was a rational decision. The employee earned over $100,000 by waiting until the commission was paid to give notice of quitting. However, there was nothing new which occurred at the time that the employee actually quit which would constitute additional good cause. The timing of the employee's decision places it outside of the windows provided by the exceptions to the quit disqualification. Therefore the commission has no alternative but to affirm the appeal tribunal decision.

Regarding the repayment of overpaid benefits, department records show that the employee initially indicated to the department that he was laid off. Only when the employer raised the issue did the department begin to investigate whether the employee's separation disqualified him from receiving benefits. At that point, the employee willingly acknowledged that he quit. However, benefits were initially paid due to the employee's fault.

cc: Marshall Financial Group (Madison, Wisconsin)
Lindsay Kearl
Kathy Walen


 

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uploaded 2009/10/23