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

KARRIE L DAVIS, Employee

TARGET CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10606277RC


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 four and a half years as an ad specialist for the employer, a retail store. Her last day of work was May 11, 2010 (week 20). Her date of quit was May 25, 2010 (week 22).

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

On May 25, 2010, the employee spoke with the employer's human resources team leader and informed her that she was quitting to take care of her ailing husband. The team leader had known about the husband's illness for some time but this was the first time there was discussion regarding the employee quitting. The team leader suggested the employee take some time off and assess the situation before quitting. She informed the employee that she could take unpaid personal leave or an intermittent leave of absence of up to 150 days. The employee said she would think about it and get back to the team leader. The employee missed her next three scheduled shifts and the employer did not hear from her again.

An employee who quits work for an employer is ineligible for benefits under Wis. Stat. § 108.04(7)(a), unless the quitting falls within a statutory exception to the quit disqualification. Wis. Stat. § 108.04(7)(c), provides:

Paragraph (a) does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work, or that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

The employee established that she quit her work because of the verified illness of her husband. The employee's husband has a persistent and lasting medical condition that would continue beyond 150 days. The employee remained able to work and available for work as demonstrated by the fact that she maintained her full-time first-shift employment.

The commission therefore finds that in week 22 of 2010, the employee voluntarily terminated her work for the employer within the meaning of Wis. Stat. § 108.04(7)(c) and that she is able to work and available for work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2010, if she is otherwise qualified. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed December 10, 2010
daviska : 132 : 5  VL 1023 ; VL 1023.13

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 witness credibility and demeanor. The commission's reversal is not based on the credibility of the witnesses. The ALJ relied on a commission decision issued in 2004 and referenced whether the employee explored "all reasonable alternatives to quitting." However, 2009 Wisconsin Act 11, effective with quits occurring in week 22 of 2009 and later, modified Wis. Stat. § 108.04(7)(c) with regard to quitting to care for a family member. The illness or disability of the family member who requires care must be verified but the provision no longer requires that reasonable alternatives be exhausted first. In addition, the commission disagrees with the ALJ's reasoning that because the employee is employed full time, she does not qualify for benefits under the family health exception. In order to be eligible for benefits under the family health exception, the employee must be able to work and available for work. The employee's full-time employment demonstrates her ability to work and availability to work.

cc: Target Corporation (Racine, WI)


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