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

BARBARA A ZOCH, Employee

MASTERS GALLERY FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11401429AP


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 approximately one week as an assembly line worker for the employer, a cheese packaging and distribution business. Her last day of work was on December 7, 2010, and she quit on December 8, 2010 (week 50).

The employee was paid $14.61 per hour. She was to average 40 hours per week of work. She agreed to train on the first shift and agreed to work on the third shift following six weeks of training. For similar work in the employer's labor market area, the point of pay at which 75% of workers earn more than 25% of workers earn less is $10.06. 67.16% of suitable jobs are full-time on the first shift and 9.59% of suitable jobs are full-time on the third shift. 93.61% of all similar work in the employer's labor market consists of full-time work of 40 or more hours per week.

Wisconsin Statute § 108.04(7)(a) provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Pursuant to Wis. Stat. § 108.04(7)(e), the quit disqualification of Wis. Stat. § 108.04(7)(a) does not apply if the employee accepted work which could have been refused under Wis. Stat. § 108.04(9) and terminated the employment within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours (including arrangement and number), or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. If the condition in question is found in less than 25 percent of the similar work in the labor market, then the condition is "non-prevailing."

The commission noted in Schulenberg v. Yellow River, Inc., UI Dec. Hearing No. 98003804MW (LIRC March 23, 1999):

"The prevailing conditions of work standard applies to all denials of benefits for refusal of offers of or referral to new work, regardless of whether the claimant raises the issue and regardless of his reasons for refusing the job or the referral." Memorandum No. 324 to District Examiners (Industrial Commission of Wisconsin, August 2, 1950). This language, from the commission's predecessor, tracks federal language in what continues to be the federal government's most definitive pronouncement on labor standards, its January 6, 1947 Program Letter (No. 130). There, the Department of Labor states that the standards in question are minimum standards, that they apply to all denials of benefits for refusal of offers of or referrals to new work regardless of the reasons for refusing the job in question. By operation of Wis. Stat. § 108.04(7)(e), this standard also applies to quits within ten weeks of starting the employment in question.

The employee accepted work she could have refused based on the hours of the work. The employee quit her job within ten weeks of starting the job. The employee's quitting falls within the exception contained in Wis. Stat. § 108.04(7)(e) regardless of the reason the employee quit.

The commission therefore finds that the employee accepted work in week 49 of 2010, that could have been refused because the wages, hours (including arrangement and number), or other conditions of the work were substantially less favorable to the employee than those prevailing for similar work in the locality, and that the employee voluntarily terminated that work in week 50 of 2010, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2010, if she is otherwise qualified. There is no overpayment as a result of this decision. Pursuant to Wis. Stat. § 108.04(7)(h), 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 June 28, 2011
zochbar . urr : 132 : 1 SW 844 : VL 1034

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission has reversed the ALJ as a matter of law. The ALJ incorrectly reasoned that Wis. Stat. § 108.04(7)(e) did not apply because the employee agreed to work third shift. However, for Wis. Stat. § 108.04(7)(e) does not apply only where an employee is ignorant of the working conditions. Indeed, the reason the employee quit is irrelevant. If the work accepted and quit is non-prevailing in the employee's labor market, and the employee quits that work within ten weeks, Wis. Stat. § 108.04(7)(e) applies. Although the employee was in a training period, the position she accepted was on third shift. The employee was still going to be working third shift at the time she quit.

 


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