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

VELMA L JOHNSON, Employee

UNIFIED SOLUTIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11608740MW


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 20 months as a custodian for the employer, a packaging company. Her last day of work was February 14, 2011 (week 8).

In 2010, the employee was absent from work with leave taken pursuant to the Family and Medical Leave Act (FMLA). Each year, the employer requires its staff to recertify any FMLA request.

On January 14, 2011, the employee was notified that she would be laid off because the business was closing. The layoff was effective March 18, 2011 (week 12).

The employee provided notice that she would be unable to work from February 15 through 21, 2011 (weeks 8-9) due to an allergic reaction. She requested FMLA paperwork on February 15, 2011. The employer provided the necessary paperwork on February 18, 2011, and requested that it be returned by March 1, 2011 (week 10). The employee did not have any contact with the employer after February 21, 2011, and never submitted any FMLA request to the employer in 2011. The employee believed that her doctor would have submitted all necessary medical documentation to the employer.
Department records reflect that the employee was filing a claim for unemployment insurance benefits as of week 8 of 2011.

The issue to be decided is whether the employee quit or was discharged. If the employee quit, the next issue is whether her quitting was within an exception to allow for the immediate payment of unemployment insurance benefits. If the employee was discharged, the issue is whether the discharge was for misconduct connected with the employment.

The ALJ found that it was the employee's responsibility to ensure that all the necessary medical documentation was submitted to the employer, and that her failure to keep the employer apprised of her situation constituted a voluntary termination of employment. Yet, the commission finds that this case involves a reverse Story situation. In Bezie v. Sendik's, UI Dec. Hearing No. 09607377WK (LIRC Feb. 25, 2010), the commission explained,

In a reverse Story situation, when an employer informs the employee that she is going to be discharged at a designated time in the future, and the employee quits prior to that time, the employee has accelerated her last day of work and is ineligible for benefits until the effective date of discharge, but eligible thereafter. Prior commission decisions have followed such reverse Story analysis. See, e.g. Jozwiak v. Dental Associates Dental Clinic of Marshfield SC, UI Dec. Hearing No. 92002305WR (LIRC Dec. 18, 1992) and Herth v. Perry Creek Cranberry Corporation, UI Dec. Hearing No. 89003939LX (LIRC Jan. 10, 1991). The time between the employee leaving and the effective date of discharge is treated as "work available." That is, the employer had work available for the employee but the employee did not perform that work.

Following the Bezie analysis, the employee is ineligible for benefits from the week she stopped working and stopped contacting the employer, week 9, treating that as a "work available," until the week of the business closing and layoff, week 12.

The employee worked full-time for the employer, Monday through Friday, thus the record is sufficient to establish that in weeks 9 through 11 of 2011, the employee missed more than 16 hours of work per week and would not be eligible for benefits pursuant to Wis. Stat. 108.04(1)(a)2.(1)

Next, the employee's discharge in week 12 of 2011 was due to the business closing, not for misconduct connected with the employment.

The commission therefore finds that in weeks 9 through 11 of 2011, the employee missed more than 16 hours of work in each week that the employer had available for her, within the meaning of Wis. Stat. § 108.04(1)(a)2.

The commission further finds that in week 12 of 2011, 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 affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 9 through 11 of 2011, but eligible as of week 12 of 2011, if otherwise qualified.

Dated and mailed February 23, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the ALJ before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; the commission has reached a different legal conclusion regarding the nature of the separation.

johnsve : 150 : 6



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Footnotes:

(1)( Back ) Wis. Stat. 108.04(1) "General disqualifications and limitations," provides, in relevant part:

(a) If an employee is with due notice called on by his or her current employing unit to report for work actually available within a given week and is unavailable for, or unable to perform:

1. Sixteen or less hours of the work available for the week, the employee's eligibility for benefits for that week shall be reduced under par. (bm).

2. More than 16 hours of the work available for the week, the employee is ineligible for benefits for that week.