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

ANASTASIA L DOHERTY, Employee

MADISON BIRTH CENTER SC, Employer

UNEMPLOYMENT INSURANCE DECISION

Hearing No. 10005150MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a birth center providing "well woman" health, pregnancy, birth and postpartum care, for over three years as a certified nurse midwife (CNM). She quit her job effective July 1, 2010 (week 27).

The employee was one of three CNMs working for the employer, including the employer's director. The employee worked in the clinic on Mondays, Tuesdays and Thursdays, and was on call Tuesdays and Thursdays and at least every third weekend.

At the end of March, 2010, the employer's director announced that she was leaving the center and that a new director had been hired to replace her. The new director was a certified professional midwife (CPM). The employee and the other CNM on staff were concerned about this change because CPMs do not have as expansive a scope of practice as CNMs and cannot received reimbursement from BadgerCare. The employee and her co-worker felt their responsibilities would increase and that the quality of care might go down. The other CNM on staff ultimately decided to resign as a result of these concerns.

After the other CNM decided to resign the employee became concerned that, as the only CNM remaining on staff, her duties would increase. The employee believed she would be on call every day, since there was no one else available who could handle those duties that only a CNM can perform. The employee expressed her concerns to the director, prior to that individual's resignation. The director stated that things would work out and that the employer's owner was trying to get other CNMs into the practice. The employee also talked with the new director, who assured the employee her schedule would remain the same. The new director told the employee that, if she was not on call, patients needing her services would be brought to the hospital.

The employee was not convinced that the employer would be able to hire additional CNMs. Further, the employee objected to the notion of patients being brought to the hospital, since these were individuals who had chosen not to have a hospital birth. She indicated she would feel responsible even if she was not on call. On May 3, 2010, the employee gave notice that she would be resigning effective June 27.

The question to resolve is whether the employee's quitting fell within any statutory exception permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee was concerned that she would be required to be on call constantly in light of the fact that the other two CNMs on staff had resigned and felt that her working conditions would generally suffer. However, the employer's director assured the employee that she would not be required to work extra hours, and the owner told her that it intended to hire additional CNMs. As of the date of the hearing, the employer had, in fact, hired two new CNMs. While the employee's concerns were reasonable and legitimate, the commission believes that she jumped the gun by quitting her job without waiting to see what would transpire. The employee's decision to quit was premature and not with good cause attributable to the employer.

The commission therefore finds that in week 27 of 2010 the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 30 through 52 of 2010 in the total amount of $8349, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). 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 27 of 2000, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $8349 to the Unemployment Reserve Fund.

Dated and mailed January 7, 2011
doheran . urr : 164 : 2 VL 1080 ; VL 1080 . 01

/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 about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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.


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