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

TAMMY S WANIGER, Employee

OAK CREEK ASSISTED LIVING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10401966AP


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 over three and one-half years, most recently as a certified nursing assistant for the employer, an assisted living facility. Her last day of work was on March 30, 2010 (week 14).

The employee had worked about two years as the administrator. She was paid $16.25 per hour. On February 16, 2010, the employer had a meeting with workers. After the meeting, the employer made the decision to remove the employee as the administrator. She was removed and placed in the position of a CNA .

When the employee received her first paycheck as a CNA, she became aware that her pay had been reduced to $12 per hour. The employee informed the employer that she was quitting.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

If an employee voluntarily terminates employment, Wis. Stat. § 108.04(7)(a) provides that the employee's eligibility for benefits will be suspended until four weeks have passed since the week of quitting and the employee has earned wages in covered employment equaling at least four times his or her weekly benefit rate, unless the quitting falls within a statutory exception.

The employee contended that she quit her employment and should be eligible for benefits because she quit her job because of the pay reduction. The commission disagrees.

The employee had been told, when she was removed from her administrator position, that her pay would be reduced and that the difference would go to the administrator. The employee began her employment in 2006 as a CNA at a rate of $10 per hour. It was the employee's decision to transfer back to a CNA position that resulted in the decrease in pay. The employee should have expected that her pay would be decreased when she stepped down from her position as administrator. The employee did not inquire into the amount of the pay cut before accepting the transfer. The employer did not reduce the employee's pay to her original CNA salary of $10 per hour. While the employee may have been dissatisfied with the decrease in salary, it was not reasonable of her to assume she would continue to make as much as a CNA as she had as an administrator. Under the circumstances, the employee's quitting was not with good cause attributable to the employer or for any other reason that would permit immediate benefit payment.

The commission therefore finds that in week 14 of 2010, the employee voluntarily terminated employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to benefit suspension under the statutes.

The commission further finds that the employee was paid benefits for each of weeks 14 through 32 of 2010, amounting to a total of $6,274.00; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 of 2010, 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 $6,274.00 to the unemployment reserve fund. This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may have already received, a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed October 29, 2010
wanigta . urr : 145 : 6 VL 1059.20  : VL 1080.26

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a differing assessment of witness credibility and demeanor but rather, because the commission reached a different conclusion when applying the law to the facts found by the ALJ.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: P & J Oaks LLC


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