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


EARLINE L LIPSCOMB, Employe

SAINT JOHNS HOME OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606449MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Paragraph six of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW is deleted, and the following is substituted therefor:

"The employe's reduction in hours was a voluntary termination of employment, within the meaning of Wis. Stat. § 108.04(7)(a). Wisconsin Statute section 108.04(7m) is inapplicable in this case, for the following reasons. Section 108.04(7m) provides:

(7m) VOLUNTARY REDUCTION IN HOURS OF EMPLOYMENT. An employe whose employer grants the employe's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employe voluntarily terminates his or her employment within the meaning of sub. (7). The wages earned by the employe from that employer for any week in which the reduction requested by the employe 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 employe in writing, prior to the time that the request is granted, of the effect of this subsection. The department shall charge to the fund's balancing account benefits paid to such an employe that are otherwise chargeable to the account of an employer that grants an employe's request under this subsection, for each week in which this subsection applies, if the employer is subject to the contribution requirements of ss. 108.17 and 108.18.

The only legislative history of this provision is contained in the Plain Language Summary of the provision by its sponsor, the Unemployment Compensation Advisory Council. The purpose of the statute is to prevent an employe from requalifying for unemployment insurance eligibility (after reducing his or her hours) and receiving partial benefits based on reduced employment with the on-going employer, when the partial-benefit entitlement is due to the employe's choice to work reduced hours. Before this statute came into being, on-going employers were being charged for benefits based on a reduction in hours granted due to employes' requests (as opposed to reductions initiated by the employer). The previous situation was deemed unfair to employers, and rightly so, since they were being charged for unemployment insurance that was payable due to an employe's request to reduce his or her hours (and thus be eligible for partial benefits). To apply Wis. Stat. § 108.04(7m) in the present case is just as unfair, but in the other direction. The effect of doing so would be to prevent an employe from ever requalifying for unemployment insurance eligibility following a voluntary reduction of hours even where, as here, the subsequent separation and application for unemployment insurance by the employe have nothing whatsoever to do with the previous reduction in hours.

"The purpose of Wis. Stat. § 108.04(7m) is to prevent one from collecting partial unemployment insurance from an employer whom the employe could work full time for, but has chosen not to. That is not the present case, however. In the present case, a few weeks after the employe reduced her weekly hours from 40 to 32, the employer discharged the employe for alleged misconduct. At this point, the employe is not attempting to collect partial unemployment insurance after having reduced her weekly work hours, so Wis. Stat. § 108.04(7m) is inapplicable; the employe therefore may use wages following her voluntary reduction in hours to meet the requalification requirement of Wis. Stat. § 108.04(7)(a). At this point, the employe is attempting to collect unemployment insurance following a discharge not for misconduct. The misconduct statute, 108.04(5), therefore is applicable and since the discharge was not for misconduct, the employe is eligible for unemployment insurance based upon this separation.

"The requalification requirements of Wis. Stat. § 108.04(7)(a) are that at least four weeks elapse from the end of the week in which the quit occurred, and the claimant earn wages after the week in which the termination occurs equal to at least four times the employe's weekly benefit rate under Wis. Stat. § 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government. In this case the employe, after voluntarily reducing her hours, earned more than $1,550.00 in employment with the employer (before the discharge). As of the time of the discharge, therefore, the employe had met the requalification requirements of Wis. Stat. § 108.04(7)(a)."

2. Paragraphs 9-11 and 13 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

"It is therefore found that, in week 31 of 1998, the employe voluntarily terminated her employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a) and that, as of week 37 of 1998, the employe had satisfied the requalification requirements of that statute."

DECISION

The decision of the administrative law judge, as modified, is affirmed in part and reversed in part. Accordingly, the employe is ineligible for benefits beginning in week 31 of 1998, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe satisfied these requalification requirements as of week 37 of 1998 and therefore is eligible for unemployment insurance as of that week, if she is otherwise qualified.

Dated and mailed March 30, 1999
lipscea.umd : 105 : 1 BR 339

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 


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 we must look at two different separations in this case. The first separation is for the quit when the employe reduced her hours under 108.04(7m) and the second is the separation caused by the discharge.

The majority says that because the employe was not trying to collect partial benefits that 108.04(7m) does not apply at all. The problem with that is in week 31 the employe quit under 108.04(7m) and needed to requalify for benefits by earning wages equal to four times her weekly benefit rate after the week of the quit and serving a 4 week suspension of benefits. The plain reading of the statute does not say it only applies when an employe files for partial benefits. If the advisory council and the legislature had considered this situation, they might have drafted the statute in a different manner. The statute that they did draft is fairly specific because it requires the employer to notify the employe in writing prior to the time that the reduction of hours is approved.

In cases involving a series of quits that do not fall within any of the exceptions which would allow for the immediate payment of benefits, the employe must requalify from each quit. The burden here is not that great except the employe would not be immediately eligible for benefits as she would be if there was only the discharge but not for misconduct issue.

The administrative law judge found department error because the department did not investigate the partial quit issue. I do not agree with the administrative law judge that there was department error where the department did not have all the facts at the time they made their initial decision to pay the employe benefits. The department can not make an error on an issue until it is aware of the issue. The finding of no employe fault does not resolve the issue. There must also be real department error to waive the overpayment.

I would agree with the administrative law judge that the employe needs to requalify by earning 4 times her benefit rate of $171. More than 4 weeks had passed by the time the employer discharged the employe so she must only earn $684 in covered employment to be eligible for benefits. I would affirm the administrative law judge's decision except for the portion dealing with the waiver of overpayment because I would find no department error.

Pamela I. Anderson, Commissioner

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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