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

SUSAN A YOKOFICH, Employee

US BEST, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11610735MW


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 one day as a cook for the employer, a food service management company. Her last day of work and the day on which she quit was October 17, 2010 (week 43).

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The employee applied for a part-time job as a cook and was hired. She was paid $11.25 per hour for 24 hours per week during the first shift. Her ZIP code at her home was 53151 and the employer's place of work was at ZIP 53214. The employee reported to work for one day, but quit because she did not like the atmosphere. The job required the employee to work in a school and residential facility for children who had been removed from some of the local public schools.

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."

Only 22.87 percent of work similar to that performed by the employee in the employer's labor market consists of part-time work of 24.00 hours per week or less. Since such part-time work is found in less than 25 percent of the similar work in the labor market, the condition is "non-prevailing." Therefore, the number of hours of the work was substantially less favorable to the employee than existed for similar work in the labor market.

The employee did not raise the number of hours as a reason for quitting. However, as the commission stated 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 commission therefore finds that the employee accepted work in week 43 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 43 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 43 of 2010, if she is otherwise qualified. 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.

As Amended, Dated and Mailed March 23, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission disagrees with the ALJ's finding that the evidence did not establish that the hours of the employee's position were substantially less favorable to the employee than for similar work in the labor market.


yokofsu . urr : 132 : 6

cc: US Best, Milwaukee, WI


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