CHERYL D FUENTEZ, Employee

COUSINS SUBMARINES, Employer

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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee worked for approximately six months as a cashier for the employer, a fast food restaurant. She earned $7.25 per hour and worked nine hours per week. On February 10, 2011 (week 7), the employee informed the night manager that she was quitting because she had accepted full-time employment with another employer. The employee's average weekly wage would be significantly higher with the new employer at a daily rate of $145 for weekend shifts. The employee's last day of work was February 14, 2011 (week 8). She worked one day for the new employer before her employment was terminated.

On November 3, 2010 (week 45), the employee initiated a new claim for unemployment benefits. She filed weekly claim certifications thereafter and was receiving partial benefits at the time she quit.

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

When a worker quits a job, she is presumed ineligible for benefits unless she qualifies for an exception to the quit disqualification. One exception to this disqualification is set forth in Wis. Stat. § 108.04(7)(p). This allows an employee to be immediately eligible for benefits if while claiming benefits for partial unemployment, she terminated work to accept employment or other covered work, if that work offered an average weekly wage greater than the average weekly wage earned in the terminated work.

The employee quit part-time work of nine hours per week paying $7.25 per hour to accept full-time work paying a daily rate of $145 for weekend shifts. The commission takes administrative notice of the department's computer records indicating that the new employer is a covered under the Wisconsin unemployment insurance law and the employee was receiving partial benefits at the time she quit.

The commission therefore finds that, in week 8 of 2011, the employee terminated work with the employer, while claiming benefits for partial unemployment, to accept employment or other covered work which offered an average weekly wage greater than the average weekly wage earned in the terminated work, within the meaning of Wis. Stat. § 108.04(7)(p).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified. There is no overpayment of unemployment benefits. If the employer is subject to the contribution requirements of the Wisconsin unemployment compensation 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 October 25, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. Rather the commission reaches a different legal conclusion when applying the law to the facts found by the ALJ.



fuentch . urr : 102 : 2

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