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

AMANDA L ROHDE, Employee

CHOICE AUTO RECYCLERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12401592AP


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 the employer approximately five years, the last three as an office manager and bookkeeper. She performed her job satisfactorily. She worked full-time, 8 a.m. to 5 p.m., Monday through Friday. For the week ending March 31, 2012, the employee had permission to take Friday as a vacation day. During the day on Wednesday, March 28, 2012, the employee asked the employer if she could leave early to deal with a family crisis. She indicated that her work was completed for the week. The employer gave her permission to leave. The employee intended to take the remainder of the week off and return the following Monday.

During the employee's absence, the employer hired a new employee to do the employee's bookkeeping duties and perform her work at the employee's desk.

When the employee arrived at work on Monday, she saw the new person working at her desk. The employee and employer then had a meeting in which the employer stated that he was not sure the employee would be returning. He stated that he would like the employee to continue working for the employer in a sales job. There was no discussion about pay or hours of the new job. The employee refused to take the job, and her employment ended.

The employer testified that he told the employee the job involved sales and office manager duties. The employee, however, testified that the employer referred to the job only as a sales position, and said nothing about office manager duties. The employer's witness supported the employee on this point, testifying that the employer said nothing to the employee about continuing to be an office manager, only about working in sales. The witness testified that the employee did not give the employer the opportunity to fully explain the job offer, but that testimony was not credible. The employer was able to repeat the offer three or four times, and there was no evidence that the employee walked out while the employer was still trying to talk to her. In addition, the employer's exhibits, letters he drafted shortly after meeting with the employee, stated that he told the employee he offered her a sales position. The employer's assertion that it was his intention to offer a combined sales and office manager position is not credible.

The first issue to decide is whether the employee quit or was discharged. Generally, if an employer presents an employee with a new condition of employment, and makes it clear to the employee that rejection of that condition will amount to a choice to discontinue the employment relationship, the choice not to accept the condition is considered a quit. Shudarek v. LIRC, 114 Wis.2d 181, 188, 336 N.W.2d 702 (Ct. App. 1983); Dentici v. Industrial Commission, 264 Wis. 181, 187-88, 58 N.W.2d 717 (1953). In the case at hand, the circumstances conveyed the message that the employee's rejection of the sales job was a choice to discontinue her employment-someone else had been hired and was doing the employee's former job duties, no option other than the sales job was discussed, it was a small office so the lack of any other option was apparent, and the discussion quickly turned to making arrangements for the employee to turn in keys and clean out her desk. It is concluded that the employee quit her employment when she rejected the sales job.

The second issue to decide is whether the employee's quitting was for a reason that would permit the immediate payment of unemployment benefits. Generally, if an employee voluntarily quits employment, benefit eligibility is suspended until four weeks have elapsed since the week of the quitting, and the employee has earned wages in covered employment equaling at least four times his or her weekly benefit rate. Wis. Stat. § 108.04(7)(a). An employee would not be disqualified, however, if the quitting was for good cause attributable to the employing unit. Wis. Stat. § 108.04(7)(b).

Good cause attributable to the employer involves some act or omission by the employer that justifies the employee's decision to quit. It must involve some fault on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis.2d 106, 120, 287 N.W.2d 763 (1980). The reason the employee quits must be one that justifies the decision to become unemployed rather than to continue working. The commission must determine whether the employee's decision to quit was a reasonable reaction to some act on the part of the employer. See, Gustafson v. Minnesota Best Maid Cookie Co, Inc., UI Dec. Hearing No. 98201596NR (LIRC Feb. 22, 1999), citing Stetz v. DILHR, Dane County Circuit Court Case No. 136-215, Feb. 13, 1973.

The employee's decision in this case was a reasonable reaction to an arbitrary act by her employer. She had been performing her job satisfactorily, but while she was away from work for only two and one-half days her employer, without giving any notice to her, hired someone else to perform her job duties and to sit at her desk, and the employer gave her no option to resume her duties when she returned to work. The only option the employer offered was to perform a job that was at a lower level of skill than her former position. The office manager job was self-directed and involved supervision, while the sales job did not. The length of time required to learn the techniques, acquire the information and develop the facility needed to perform the office manager job was over two years and up to four years; for the sales job it was only 30 days, up to six months.(1) An employer's arbitrary or unreasonable transfer of an employee to a position that involves a lower level of skill or a lower rate of pay provides the employee with good cause to quit. Frei v. Elroy Mfg, Inc., UI Dec. Hearing No. 03003853MD (LIRC April 13, 2004); Cordts v. School District of Solon Springs, UI Dec. Hearing No. 95201476SU (June 5, 1996).


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2012, if otherwise qualified.

Dated and Mailed October 31, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


rohdeam . urr : 107 : 2



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Footnotes:

(1)( Back ) Comparison based on Department job descriptions of the positions accepted into evidence without objection. The SVP numbers on the description for the office manager job range from 4 to 7, and for the sales job (which is titled "order and contract clerk") range from 2 to 4. SVP is an acronym of the Bureau of Labor Statistics, standing for specific vocational preparation, and refers to the amount of time required to learn the techniques, acquire the information, and develop the facility needed to perform the job.