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

NANCY E FRITZ, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03402197AP


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 has worked as a sales associate for about two years for the employer, a general merchandise retail store. Because of her physician's advice that she work no more than four hours per day as of December 13, 2002 (week 50), due to problems related to her pregnancy, she requested a reduction in hours from 28 per week to 20 per week. The employee complied and scheduled her for five four-hour shifts per week.

The employee continued working under restrictions until the week of April 22, 2003 (week 17), at which time, she began her pregnancy leave of absence. She was related by her physician to return to work without restrictions as of June 9, 2003 (week 24), but has not yet returned because she chose to take a leave of absence under the Family and Medical Leave Act. Department records show that the employee ceased claiming partial unemployment benefits in the calendar week ending April 5, 2003 (week 14).

The initial issue to be decided is whether a separation of employment occurred on or about December 11, 2002 (week 5), when the employee requested and was granted a reduction in her work schedule.

Pursuant to Wis. Stat. § 108.04(7m), the employee's request for a decrease in her hours of work constituted a quitting for unemployment benefit purposes. The next issue is whether the employee quit her employment for any reason permitting immediate benefit payment. In this case, the employee quit by reducing her hours on the advice of her doctor. The commission finds that the employee quit because she was unable to do her work due to her health, and had no reasonable alternative within the meaning of Wis. Stat. § 108.04(7)(c).

The next issue to be decided is whether the employee was otherwise able to work and available for suitable work in her labor market as of week 50 of 2002.

The employee worked all of the scheduled hours as of the week of her quitting that were within her physical restrictions. Accordingly, she has established that she was able to work and available for suitable work as of that week. There was no indication in the record that the employee was not genuinely interested in working full time. However, the employee was unable to work and unavailable for work as of first week of total unemployment, week 18 of 2003.

The commission therefore finds that the employee voluntarily terminated her employment in week 50 of 2002, within the meaning of Wis. Stat. § 108.04(7m), but that she did so because she was unable to do her work and had no reasonable alternative, and that she was able to work and available for work from weeks 50 through 52 of 20002 and weeks 1 through 17 of 2003, within the meaning of Wis. Stat. § 108.04(7)(c).

The commission further finds that as of week 18 of 2003, the employee was not able to work and/or not available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits in weeks 50 through 52 of 2002, and weeks 1 through 17 of 2003, if she is otherwise qualified. She is ineligible for benefits beginning in week 18 of 2003, and until she is able to work and available for work. There is no overpayment with respect to this issue. Pursuant to Wis. Stat. § 108.04(7)(h), if the employer is subject to the contribution requirements of Wisconsin Unemployment Insurance Law, any benefits payable to the employee based upon work performed for the employer prior to the quitting will be charged to the Unemployment Reserve Fund's balancing account.

Dated and Mailed March 17, 2004

fritzna . urr : 132 : 1 VL 1023 . 01

BY THE COMMISSION:

/s/ David Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

cc: Wal-Mart Associates, Inc. (Chilton, Wisconsin)


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