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

JESSICA R WHITE, Employee

US CELLULAR , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09607287WK


On July 30, 2009, the Department of Workforce Development issued an initial determination which held that the employee had been discharged for misconduct. The employee timely filed a request for hearing on the adverse determination, and hearing was held on September 1, 2009 in Waukesha, Wisconsin before a department administrative law judge. On September 2, 2009, the administrative law judge issued an appeal tribunal decision which affirmed the initial determination. The employee timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the record in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked just over eight years as a technical services specialist for the employer, a telecommunications concern. The employee worked first shift, 6:00 a.m. to 2:30 p.m., Monday through Friday. Effective June 14, 2009, the employer unilaterally changed the employee's work schedule to 7:30 a.m. to 4:00 p.m., Thursday through Monday. After that change in schedule, the employee missed work on several weekend days due to lack of childcare. The employee's several absences led the employer to purport to discharge the employee therefor on July 12, 2009 (week 29).

The employee's failure to arrange childcare for her new, weekend shifts of work was conduct inconsistent with the continuation of the employment relationship and, as such, a quit by the employee within the meaning of Wis. Stat. § 108.04(7), and the commission so finds. Wisconsin Stat. § 108.04(7)(a) imposes a disqualification from unemployment insurance eligibility for quits of employment that do not fall within one of the § 108.04(7) exceptions to that disqualification. Wisconsin Stat. § 108.04(7)(cm) is one such exception, and allows for immediate eligibility for unemployment insurance if an employee is hired to work a particular shift and the employee terminated his or her work as the result of a requirement by his or her employer to transfer his or her working hours to a shift occurring at a time that would result in a lack of childcare for his or her minor children. The employee still must be able to work and available for full-time work during the same shift that the employee worked in the employee's most recent work with that employer. The employee's circumstances meet this exception to the Wis. Stat. § 108.04(7)(a) quit disqualification. Given that the employee worked virtually the entirety of her employment on first shift, she must be held to have been hired to work that shift. The employer then transferred her from first shift work to a shift which combined first shift and weekend work, and the weekend work makes the transfer one to a different shift. This transfer resulted in a lack of childcare for the employee's one-year old; the employee was unable either to afford commercial daycare for her child or to arrange for friends or relatives to regularly watch her child on weekends. See Reynolds v. Advance Security, UI Dec. Hearing No. 07602150MW (LIRC Aug. 16, 2007) (an employee's inability to work second shift because of his childcare responsibilities for his minor children, satisfies the lack of childcare condition of Wis. Stat. § 108.04(7)(cm)).

The commission therefore finds that, in week 29 of 2009, the employee terminated her work with the employer due to lack of childcare, within the meaning of Wis. Stat. § 108.04(7)(cm).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 29 of 2009, if she is otherwise qualified.

Dated and mailed January 15, 2010
whiteje : 105 : 5 VL 1032

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is based upon its conclusion that, as a matter of law, the undisputed facts render the separation a quit pursuant to Wis. Stat. § 108.04(7)(cm).

 

cc: US Cellular (Waukesha, Wisconsin)


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