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

SARAH C BUECHLER, Employee

LEGENDS OF DE PERE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400417AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed July 28, 2011
buechsa . usd : 152 : 1 :  SW 800 : SW 853 : SW 855

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee does not deserve unemployment insurance benefits because she refused work that the business offered to her after the employee requested more hours. The employer's argument fails.

Because the employee had never before worked for the employer as a bartender, the additional job offered to her is considered "new work." Wisconsin Stat. § 108.04(9)(b) states that benefits shall not be denied to any otherwise eligible individual 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. The Department of Workforce Development has quantified this standard with what is known as a "quartile" system. Essentially, if the condition in question prevails in less than 25% of the jobs in the particular job category at issue (along with similar work as defined in the administrative code), the work is substantially less favorable than prevailing work in the locality, under Wis. Stat. § 108.04(9). These so-called labor standards "are minimum standards" and "apply to all denials of benefits for refusal of offers of or referrals to new work regardless of [the claimant's] reasons for refusing the job." Unemployment Compensation Program Letter, Note 130, p. 2 (January 6, 1947). This is because the purpose of the standards is not primarily directed at particular individuals, but rather is "to prevent the unemployment compensation system from exerting downward pressure on existing labor standards" (emphasis added). Id. at 3.

In the present case, part-time work of 15 hours or less per week constitutes less than seven percent of the labor market for similar jobs and exclusively second shift work constitutes less than 13 percent of the suitable jobs in the employer's labor market. As such, the bartending work offered by the employer to the employee is "substantially less favorable" under Wis. Stat. § 108.04(9), and the employee's failure to accept that work cannot serve as a basis for benefit ineligibility.



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uploaded 2011/09/13