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

JONQUETTA A SINER, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11603514MW


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, except that it makes the following modifications:

Delete the second and third sentences of the sixth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW and insert therefor: "The employee was aware prior to moving that the employer had a policy requiring that she live within the city. However, the employer presented no evidence as to the basis for its existence."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 13 of 2011, if otherwise qualified.

Dated and Mailed December 20, 2011
sinerjo . umd : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION


The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer's policy controls off duty conduct. Pursuant to Gregory v. Anderson, 14 Wis. 2d 130 (1961), the employer has the burden to establish that its work rule governing off-duty conduct was reasonable. Further, "the reasonableness of such a rule must be tested as of the time of its adoption. It is a reasonable rule if violation is reasonably likely to harm the employer's business interests." Gregory at 138.

In Klatt v. City of Waukesha, 2003 WI App. 197, 266 Wis.2d 1083, 669 N.W.2d 752, the evidence presented established that residency was the subject of a collective bargaining agreement. The commission also noted the reason for the requirement, namely, so officers could respond quickly if called in for an emergency or in a short-staffing situation. In Anderson and Shimek v. City of Manitowoc, UI Dec. Hearing No. 89401750MNG (LIRC Nov. 7, 1990), the commission noted that:

Residency requirement for municipal employes are constitutional and legally permissible. Eastman v. City of Madison, 117 Wis. 2d 106 (App. 1983). The residency requirement in this case was duly adopted as an ordinance of the City of Manitowoc. Under these circumstances, the Commission cannot conclude that the requirement was unreasonable. Therefore, the employes did not have good cause for their voluntary termination of employment brought about by their wilful refusal to comply with the requirement.

The record in this case does not establish that the residency policy was embodied in a collective bargaining agreement or a city ordinance. The employer did not present any evidence regarding why it was reasonable to restrict where the employee, a handicap assistant, could live and why violation of its policy was likely to harm its interests.

 

cc: James Gorton


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