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

JOSEPH S CONNOLLY, Employee

FIRST AMERICAN REAL ESTATE
AND FINANCE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09005231MD


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 mortgage brokerage, for about one year as a loan originator. His last day of work was July 23, 2009 (week 30).

The employee was paid on a straight commission basis. From March to July of 2009 the employee closed only one loan, for a few hundred dollars. After covering his expenses, the employee actually lost money in that time period. He quit the job on July 22, 2009, to pursue a more lucrative career.

The question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

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 can be determined if such quitting was a reasonable reaction to some act on the part of the employer. Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). In other words, the "good cause" relates to the reaction of the employee, and not whether the employer had good cause for the action it took which precipitated the employee's decision to quit. Petersen v. Paper Transport, Inc. (LIRC, March 26, 2009).

During the last three months of his employment the employee worked but received virtually no wages. There is no evidence to suggest that the employee was not making a good faith effort to make sales during that time period or that his lack of earnings was due to his own actions. Under similar circumstances, the commission recently held that the lack of any wages justified an employee's decision to quit. See, Moss v. AHCP Independent Agent (LIRC, Nov. 30, 2009).

The commission therefore finds that in week 30 of 2009, 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 reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2009, provided he is otherwise qualified.

Dated and mailed January 11, 2010
connojo . urr : 164 : 5 VL 1059.20

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not a result of a differing assessment of witness credibility, but is as a matter of law. The commission believes that the lack of any wages provided the employee with good cause to quit. The commission further notes that, while in her decision the appeal tribunal found the employee could have remained employed and filed a claim for benefits, there is no evidence to suggest that he was working less than 40 hours a week and therefore no reason to presume he could have filed a claim for unemployment insurance.


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


uploaded 2010/01/26