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

TRICIA L WILKE, Employee

ANIMAL CLINIC OF STURGEON BAY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10401892AP


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 10 of 2010, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed November 5, 2010
wilketr . usd : 115 : 1 VL 1005 ; VL 1059.204

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked more than ten years as a part-time veterinary assistant for the employer, a veterinary clinic.

The employer's policy was that immediate payment for services/medications was preferred. The employer's owner expected that workers use reasonable discretion in carrying out this policy.

In February 2010, a regular customer of the employer with whom the employee was familiar, stopped by the clinic to pick up a medication, but explained he did not have his wallet with him and asked that he be billed. The employee was helping out at the desk at the time and told the customer that he could not take the medication with him unless he paid for it. The client became annoyed and angry, left the clinic, and returned later and paid for the medication with a credit card.

The customer communicated his displeasure with the manner in which the employee handled this matter to the employer's owner.

In February 2010, the employee was scheduled to work 7:30 a.m. to 6:00 p.m. on Tuesdays and Fridays, and 7:30 a.m. to 2:00 p.m. every third Saturday.

The employee could only work certain part-time hours each week because she worked with her husband on their farm.

The employee's schedule had changed over the years of her employment due to the changing needs of the employer.

The employer determined in February 2010 that its caseload no longer justified its staffing level on Fridays.

The employer's owner believed the employee to be the least productive and the lowest performer of the employer's workers.

On March 2, 2010, the employer's owner met with the employee. The owner reprimanded the employee for being rude and failing to exercise a reasonable level of discretion in dealing with a regular customer.

Also at this meeting, the owner explained that times were tough with the business, it was not running as lean as it needed to be, and, as a result, the employee would no longer be working on Fridays but instead would be working every Saturday, and her starting time on Tuesdays would be 8:00 a.m. rather than 7:30 a.m. This resulted in a reduction in the employee's hours from an average of 23.2 hours per week to 16.5, i.e., a 29% reduction.

The employee told the owner at the March 2 meeting that she was quitting. The owner suggested that the employee take some time and think about it, but the employee did not change her mind. The employee was offered the opportunity to work an additional two weeks but she declined this offer.

At hearing, the employee explained that she decided to quit because:

She felt the owner no longer had confidence in her.
She believed the owner would target her for criticism in the future.
She felt her safety was at risk because the increased scrutiny would cause additional stress for her and she would develop ulcers.
Working every Saturday would interfere with her ability to attend her daughter's 4-H activities and softball games.                                                                           

Although the employee mentioned the reduction in her hours in her testimony, she did not actually attribute her quitting to this reduction, and instead focused on the conflict her new schedule would create with her daughter's activities.

In her testimony, the employee admits that, "This probably would have been a good opportunity to just get some clarification rather than just quitting."

The employee asserts that her quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980). See, also, Stetz v. DILHR, et al., Case No. 136-215 (Wis. Cir. Ct. Dane County, Feb. 13, 1973).

A necessary corollary is that, before good cause can be shown, the employee must establish that she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Wis. Cir. Ct. Milw. Co., Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).

The record shows that the employee quit because she did not like her work evaluated and critiqued by the employer, and the change in her schedule would interfere with her ability to attend her daughter's activities.

It is an employer's prerogative to evaluate and critique a worker's performance. The employee's testimony that this could endanger her physical safety by giving her ulcers is wildly speculative.

If the employee was unable to work the new Saturday schedule, or it was inconvenient for her to do so, she had an obligation, prior to quitting, to discuss her concerns with the employer in order to explore other options. The employee admits that she did not raise her concerns regarding the change in her schedule to the employer prior to quitting.

In applying the good cause attributable standard, the commission considers the actual reason underlying the employee's decision to quit her employment. See, Keeler v. B&T Mail Service, Inc., UI Hearing No. 02002630MD (LIRC Oct. 31, 2002); Rabe v. Main St. Station, UI Hearing No. 01005679MD (LIRC March 8, 2002); Weise v. Sysco Food Services of Eastern Wisconsin LLC, UI Hearing No. 04403859GB (LIRC July 13, 2005).

The change in schedule resulted in a reduction in the employee's guaranteed hours each week, from an average of 23.2 to 16.5, but the employee did not emphasize, or even specifically attribute, her quitting to this reduction in hours in either her statement to the adjudicator (exhibit #1) or in her hearing testimony.

Even if the reduction in hours had constituted one of the bases for the employee's decision to quit, as a general rule, an employee who experiences a reduction in hours, effected by the employer for a valid business reason, is expected to remain employed and file a claim for partial benefits rather than quit. See, Lister v. North Central Wisconsin Rehab. Assoc., UI Hearing No. 98003262WU (LIRC Feb. 22, 1999); Vassar v. United Hospital System, Inc., UI Hearing No. 04604759RC (LIRC Sept. 3, 2004); DeCelis v. Furniture & Mattress Express, UI Hearing No. 04202698EC (LIRC March 11, 2005).

Here, the record shows that the employer was overstaffed on Fridays. As a result, the employer had a valid business reason for eliminating the employee's Friday hours to remedy this overstaffing. The employee, who has the burden of proof, did not establish that the reduction and rescheduling of her hours would, for example, have prevented her from searching for or accepting other suitable work (see, e.g., Grant v. Cornell Public Schools, UI Hearing No. 01201311EC (LIRC March 7, 2002)) or that her commuting, child care or other expenses/arrangements would not justify continuing to work a reduced number, or rearranged schedule, of hours for the employer (see, e.g., Garcia v. Impact Alcohol, UI Hearing No. 03609591MW (LIRC Feb. 27, 2004)).

In fact, the employee would not have known the impact of the reduced hours on her circumstances because she quit almost immediately after the employer provided notice of the reduction/rescheduling.

The employee failed to sustain her burden to prove that she quit with good cause attributable to the employer.


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