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

WENDY J KENDALL, Employee

BSG MAINTENANCE OF GREEN BAY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10001914MD


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 approximately eight months as a site supervisor for the employer, a housekeeping and laundry contract business. Her last day of work was February 26, 2010 (week 7).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee was discharged for misconduct connected with the employment under Wis. Stat.
§ 108.04(5).

On or about February 16, 2010, a housekeeper informed the director of sales and marketing that the employee had told her to "rebel by wearing her MP3 player on the floor" despite a directive to the contrary by the director of sales and marketing. Around that same time, a laundry worker complained to the director of sales and marking that the employee had told her subordinates that they "should find another job and walk out on the same day because [the employer] was full of it and was not going to give benefits to no one (sic)." On or about February 22, the director of sales and marketing confronted the employee with the allegations of the housekeeper and laundry worker. The employee admitted that she had made the statements.

On February 26, 2010, the human resources director and the director of sales and marketing issued the employee a written warning for her actions as well as continued poor job performance. The employee was notified that she was being demoted to a laundry worker and her rate of pay would decrease from $12.02 to $8.60 per hour. In actuality, the employee would have received $10 per hour had she accepted the demotion as the human resources director was mistaken as to the correct rate of pay. The employee declined to accept the demotion and resigned from the employment. She never returned to work for the employer thereafter.

The work offered the employee was to be performed in Dane County (zip code 53714). The labor market area for the work offered includes part or all of Columbia and Dane counties. In that area, a substantially less favorable rate of pay for a laundry worker is anything less than $10.41 per hour.

In this case, the employee was the moving party in the separation of employment. The employee was aware that the employment relationship would have continued had she accepted the demotion. The employee's actions in refusing the demotion were inconsistent with a worker who desires to continue the employment relationship. As such, the employee voluntarily terminated her employment and was not discharged by the employer.

The next issue that must be resolved is whether the employee quit for a reason that would permit the immediate payment of benefits.

One exception to the quit disqualification is if the employee terminates employment with good cause attribute to the employing unit. The employer's offer of work at a substantially less favorable rate of pay gave the employee good cause attributable to the employer. When the rate of pay is substantially less favorable than exists for similar work in the labor market, the employee has good cause attributable to the employer for quitting notwithstanding whether the reduction was justified. See Peterson v. Irish Hill Golf Course, UI Dec. Hearing No. 02200096LX (LIRC Nov. 6, 2002)("[E]ven assuming the wage reduction was warranted based upon blameworthy conduct on the employee's part, a wage reduction to a level that is substantially less favorable than that prevailing for similar work will provide an employee with good cause to quit, regardless of the reason for the wage reduction.")

The commission therefore finds that in week 7 of 2010, the employee voluntarily terminated her work with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 7 of 2010, if she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 6, 2010
kendawe : 132 : 5 VL 1059.18 ;  VL 1059. 20

/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 her impressions of witness credibility or demeanor. The commission's reversal is based on the wage rate of the position offered and the COED report indicating that that wage is substantially less favorable for similar work in the labor market.


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


uploaded 2010/08/11