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

EDNA L BROWN, Employee

MID AMERICA HEALTHCARE CORP OF WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12601904MW


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 for approximately one and one-half years as a personal care worker for the employer, a home health agency.  Her last day of work was on November 2, 2011 (week 45).

The employee worked part-time caring for her mother, a client of the employer. Her mother moved out of state on or about November 2, 2011, and the employee subsequently informed the employer that her assignment had ended. On November 8, 2011 (week 46), the employee signed a document entitled "Flexible Hour Form" which indicated that she no longer had guaranteed hours with the employer and required her to contact the employer each week or her employment would be terminated.

On November 15, 2011 (week 47), the employee contacted the employer seeking work; however, she was informed that none was available. The employee admittedly never contacted the employer thereafter because she had obtained additional hours with her second employer for whom she worked concurrently. She was aware that failing to contact the employer on a weekly basis would result in the termination of her employment. As such, her quitting was effective in week 48 of 2011.

At the time of the employee's quitting, she was working 36 hours per week with her second employer. On or about December 4, 2011 (week 50), the employee's full-time employment was terminated. Departmental records indicate that on December 6, 2011 (week 50), the employee initiated an initial claim for unemployment benefits.

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

If an employee voluntarily terminates employment, Wis. Stat. § 108.04(7)(a) provides that the employee's eligibility for benefits will be suspended until four weeks have passed since the week of quitting and the employee has earned wages in covered employment equaling at least four times his or her weekly benefit rate, unless the quitting falls within a specific statutory exception.

One such exception is outlined in Wis. Stat. § 108.04(7)(o), which provides:

Paragraph (a) does not apply to an employee who terminates his or her work in one of 2 or more concurrently held positions, at least one of which is full-time work, if the employee terminates his or her work before receiving notice of termination from a position which is full-time work.

The ALJ failed to analyze this case under the above-referenced statutory subsection. After carefully reviewing the record, the commission concludes that the evidence presented during the hearing supports a finding that the employee's quitting falls within this particular exception. The employee worked for both employers concurrently, one of which constituted full-time employment. After she quit her part-time employment with the employer at issue, her full-time employer terminated her employment. Under the circumstances, the employee is not disqualified for benefits despite voluntarily terminating her employment.

The commission therefore finds that, in week 48 of 2011, the employee terminated her work in one of two concurrently held positions, at least one of which consisted of full-time work, before receiving notice of termination from her full-time employment, within the meaning of Wis. Stat. § 108.04 (7)(o).

DECISION

The decision of the administrative law judge is amended as to the week of issue and, as amended, is reversed. Accordingly, the employee is eligible for benefits beginning in week 48 of 2011, if she is otherwise qualified. 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 13, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the ALJ prior to reversing the appeal tribunal decision. The reversal is as a matter of law rather than differing credibility. The commission has reached a different legal conclusion considering the same evidence relied upon by the ALJ.


browned . urr : 102 : 2

cc: Centurion Investigations, Inc.

 


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uploaded 2012/09/07