PAUL MAURICIO, Employee
ADECCO USA INC, 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 the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The employee worked for about eight months as an assembler for a client of the employer, a staffing agency. He worked 40 hours per week on the second shift. The client typically lays off its temporary workers in September, when production slows, and brings them back in January.
The employee enrolled at UW-Fond du Lac for the fall 2011 semester. He attended classes about eight hours per week, beginning in week 37 of 2011. Because the employee works on second shift, his class schedule did not interfere with his employment. Prior to beginning classes, the employee asked the client for a three-hour reduction in his schedule on two days each week, a total of six hours per week, to catch up on school, homework, and assignments. He intended the reduction to be for the entire semester. The client granted the employee's request.
As anticipated, the employee was laid off in September. His last day of work was on or about September 8, 2011 (week 37). The employee initiated a claim for unemployment benefits, which he completed on September 12, 2011. He reported that he was laid off, was attending school, and was anticipating being recalled.
Department records show that the employee was paid partial benefits for week 37 of 2011, based on wages of $238 he earned in that week ($10 per hour x 23.8 hours). Thereafter, for weeks 38 through 44 of 2011, the employee was paid full benefits of $164 per week. The employee stopped filing claims after week 44 of 2011 because he had been recalled.
Department records also show that the employer's third-party administrator for unemployment insurance matters reported erroneous earnings for the employee for weeks 37 through 39 of 2011. Following an investigation into the matter, the department issued a determination finding that, in week 37 of 2011, the employee quit his employment with the employer by requesting a reduction in hours from 40 hours per week to 34 hours per week, effective September 6, 2011. The decision resulted in an overpayment of $1,171, of which $328 was included in the overpayment amount set forth in another decision.(1)
The employee filed a timely request for hearing. The ALJ amended the department's initial determination as to the week of issue and as to the amount of the overpayment and, as amended, affirmed the determination. The ALJ found that the employee quit in week 36 of 2011, when he requested, and was granted, a reduction in hours typically worked.
The issue before the commission is whether the employee quit his employment by voluntarily reducing, for an indefinite period, the number of hours he worked and, if so, the effect of that quitting on the employee's eligibility for benefits.
Wisconsin Stat. 108.04(7m) provides:
An employee whose employer grants the employee's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of sub. (7). The wages earned by the employee from that employer for any week in which the reduction requested by the employee is in effect may not be used to meet the requalification requirement provided in sub. (7)(a) applicable to that termination if the employer has notified the employee in writing, prior to the time that the request is granted, of the effect of this subsection.
The purpose of the statute is to prevent an employee from collecting partial unemployment insurance benefits from an employer for whom the employee could work full time but has chosen not to. Lipscomb v. St. John's Home of Milwaukee, UI Dec. Hearing No. 98606449MW (LIRC March 30, 1999); Kampschroer v. Trane Co., UI Dec. Hearing No. 01006315LX (LIRC March 15, 2002).
Wisconsin Stat. 108.04(7m) does not apply in this case for several reasons. First, the employee did not request to reduce indefinitely the number of hours of employment he usually worked. Given the seasonal nature of the client's need for temporary workers and the timing of the employee's request, the request for a reduction in hours cannot be considered to have been an indefinite one. In fact, the request turned out to be of less than one week's duration, at which time the employee was laid off because of the client's annual slowdown in production. At most, the reduction in hours would have been in place for the remainder of the season of the employee's seasonal work. See, e.g., Kampschroer v. Trane Co., UI Dec. Hearing No. 01006315LX (LIRC March 15, 2002); Benz v. Johnson School Bus Service, Inc., UI Dec. Hearing No. 01606441WB (LIRC Oct. 22, 2001).
Second, the employee's application and eligibility for unemployment insurance benefits beginning week 37 of 2011 was not due to his voluntary reduction in hours. The employee's eligibility for benefits was due to the client's customary slowdown in production and the employee's resulting layoff. It is unfair to apply Wis. Stat. § 108.04(7m) to prevent an employee from ever requalifying for unemployment insurance eligibility following a voluntary reduction of hours where the subsequent separation and application for unemployment insurance by the employee have nothing whatsoever to do with the previous reduction in hours. Falk v. Flyway Automotive LLC, UI Dec. Hearing No. 03006613BD (LIRC May 7, 2004).
Finally, the voluntary reduction in the employee's hours would not have rendered him eligible for partial unemployment benefits. Even if the employee had worked a reduced schedule of 34 hours per week, his earnings amply exceeded his weekly benefit rate.
The commission therefore finds that in week 37 of 2011 the employee did not voluntarily terminate his employment with the employer by requesting an indefinite reduction in hours, within the meaning of Wis. Stat. § 108.04(7m).
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 37 of 2011, if otherwise qualified. There is no overpayment as a result of this decision.
Dated and Mailed May 23, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
mauripa . urr : 152 : 2
NOTE:
The commission did not consult with the administrative law judge before reversing her decision, because its reversal is not based upon a differing view as to the credibility of witnesses. Instead, the commission reversed her decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.
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uploaded 2012/09/24