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

DONNA R BAPTISTE, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11607083MW


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 ten months for a public school district as a substitute assistant for handicapped children. Her last day of work was September 28, 2010.

The employee was notified in her appointment letter that she was required to maintain residency in the City of Milwaukee during her employment. The basis for this requirement is unstated. In mid-October of 2010, the employee moved out of the City of Milwaukee to live with relatives in West Allis because she found bed bugs in her Milwaukee residence and had no where else to live with her children. Approximately one week later, on October 26, 2010 (week 44), the employee reported her change of address to the employer and the employer told her that she was required to maintain residency in the City of Milwaukee to work for the employer. The employee asked if there was anything that she could do to retain her employment. She was told that if she returned to the city, the employer would reinstate her. The employer had her sign a resignation document.

The first issue to be decided is whether the employee quit or whether she was discharged by the employer.

The determination of whether the employee quit or was discharged depends on whether the evidence establishes that the employer would not have allowed the employee to continue working if the employee had not resigned. The focus is on whether the evidence established that the employee's discharge was a certainty. See e.g., Fisher v. Black & Decker US Inc., (LIRC Dec. 11, 2001); Buchberger v. City of Sheboygan, (LIRC May 4, 2005); Mandl v. MBTI Inc., (LIRC April 5, 2002); Stahlman v. Whitnall School District, UI Dec. Hearing No. 06002990MD (LIRC Jan. 11, 2007).

The employee's undisputed testimony is that after the employer learned of her move from the city, it severed the employment relationship.

The commission and the courts have found that properly adopted residency requirements can be reasonable and that a failure to comply with such a requirement amounts to a quitting of the employment without good cause. Klatt v. City of Waukesha, 2003 WI App. 197, 266 Wis.2d 1083, 669 N.W.2d 752 (where the residency requirement was the subject of a collective bargaining agreement and the employer articulated rationale, so officers could respond quickly if called in for an emergency or in a short-staffing situation); Anderson and Shimek v. City of Manitowoc, UI Dec. Hearing No. 89401750MNG (LIRC Nov. 7, 1990), (requirement was duly adopted as an ordinance of the City of Manitowoc.)

However, the record in this case does not establish that the residency policy cited in the employee's appointment letter was reasonable. There is no evidence that it is embodied in a collective bargaining agreement or a city ordinance. In a similar case, Siner v. Milwaukee Public School, U I Hearing No. 11603514MW (LIRC Dec. 20, 2011), the commission stated: "[t]he 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." The commission reaches the same conclusion here.

The commission therefore finds that in week 44 of 2010, the employer discharged the employee but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2010, if she is otherwise qualified.

Dated and Mailed February 29, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


baptido . urr : 178 : 9

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission has reached a different legal conclusion than did the ALJ based on the undisputed testimony presented at the hearing.

 


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