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


SHERYL S LISTER, Employe

NORTH CENTRAL WISCONSIN REHABILITATION ASSOCIATES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003262WU


On July 29, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that the employe quit, but not for a reason which would allow benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On September 2, 1998, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a physical medicine and rehabilitation clinic, for two years as a "Front Office Specialist." Her last day of work was July 20, 1998 (week 30).

During most of her employment for the employer, the employe worked 40 hours a week. On March 30, 1998, the employer hired a new worker, who was assigned a portion of the employe's job duties. The employe was required to train the new worker in the performance of those duties. On April 17, the employer notified the employe that her hours were being cut back to 24 a week and that her scheduled work days would now vary from week to week. The evidence indicates that the size of the employer's practice was not diminishing and that the employe was the only worker whose hours were reduced.

As a result of being cut back to part-time status, the employe was no longer eligible to have half her health insurance premium paid by the employer, and other employe benefits, such as her 401(k), were adversely affected. The employe and another full- time co-worker devised an arrangement whereby each would work 32 hours a week, if acceptable to the employer, so that the employe could continue to maintain her full-time benefits. However, the employer was unwilling to consider this.

On July 14, 1998, the employer notified the employe that her hours were being further reduced and that, effective the following week, she would only be working 16 hours a week. The employe asked whether she would receive more hours when the employer's business increased, but was told that this was unlikely.

On July 20 (week 30), the employe notified the employer that she was resigning in order to find full-time employment. The issue to resolve is whether the employe's quitting was for a reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employe who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employe voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employe's resignation is caused by some act or omission by the employer which justifies the employe's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employe quit because the employer substantially reduced her working hours. While, as a general rule, an employe who experiences a reduction in hours is expected to remain employed and file a claim for partial benefits, that rule presumes a valid business reason for the reduction in hours. In this case, the employe was the only worker to have her hours cut, a new worker was hired and assigned many of her duties, and the employe was notified that the employer had no intention of increasing her hours, even if its business grew. Under these circumstances, the commission is unable to conclude that the reduction in her hours was due to any valid business reason. To the contrary, the commission believes that the employer's actions amounted to a substantial and unreasonable change in the terms and conditions of the employment relationship which were designed to induce the employe to quit, and which provided her with good cause for doing so.

The commission, therefore, finds that in week 30 of 1998 the employe voluntarily terminated her work with the employer, and that her quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 30 of 1998, provided she is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: February 22, 1999
listesh.urr : 164 : 1   VL 1059.204

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: Although the commission conferred with the administrative law judge about witness credibility, the commission's decision to reverse the appeal tribunal decision is not the result of any differing assessment of witness credibility but is as a matter of law.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe could have filed for partial benefits rather than quitting. Since the employe was only scheduled for 16 hours a week when she quit, I do not find it likely that that she would be unable to schedule interviews with other employers.

For these reasons, I would affirm the administrative law judge's decision.

Pamela I. Anderson, Commissioner

 

cc: ATTORNEY ROGER L DEFFNER
DEFFNER LAW FIRM SC


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