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


ROBERT A SHIPMAN, Employe

ROBBINS MFG INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001332BD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 3 of 2000, if otherwise qualified.

Dated and mailed May 31, 2000
shipmro.usd : 105 : 1   MC 626

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Wisconsin statute § 108.01 creates a presumption of unemployment insurance eligibility, which only specific disqualifying provisions negate. The provision the department points to is Wis. Stat. § 108.04(1)(b)2, which disqualifies a claimant while on a voluntary leave of absence for a definite period. In analogous situations, though, the entire commission has held that the separation in question was not a voluntary quit by an employe, but rather a layoff by the employer. Where an employe asks to be laid off, for example, and the employer lays off the employe, the separation still is at the impetus of the employer and, as such, is not a voluntary quit by the employe. See Jandourek v. Rogers Electric, UI Dec. Hearing No. 97401954GB (LIRC Dec. 5, 1997). In this kind of case, the commission reasons that the employer retains the choice whether to lay off the employe. The commission reached the same result in Miller v. ABCO Building Corp., UI Dec. Hearing No. 97607240MW (LIRC Feb. 5 1998); and, again, in Greuel v. Jim Greeley Signs & Awnings, Inc., UI Dec. Hearing No. 98001074DV (LIRC June 12, 1998).

The crux of those cases is that the separation was not a voluntary termination by the employe, but rather a layoff by the employer. So it is here. The layoff, even though for a definite period, was at the impetus of the employer and, as such, was not voluntary within the meaning of Wis. Stat. § 108.04(1)(b)2. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

NOTE: The dissent asserts that the employe was the moving party in the separation, by his having asked the employer for more work during his layoff from his full-time employer. This simply is not true, as the cases cited above illustrate. It remained the employer's choice to grant or deny the layoff, even though it was for a definite period of time. The dissent does not distinguish this situation from those the commission addressed in the above-cited cases; the majority also does not see one.

The dissent also asserts that the unemployment insurance law requires either a finding of discharge by the employer, a quit by the employe, or a voluntary leave of absence for a definite period of time. This again is not true. The unemployment insurance law allows for involuntary suspensions, and those obviously can be for definite or indefinite lengths of time.

cc: GREG FRIGO DIRECTOR
BUREAU OF LEGAL AFFAIRS

 

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 department petition that the employe was on a 3 week voluntary leave under § 108.04(1)(b)(2). The employe was the moving party when it asked the employer for more work to make it worthwhile during his layoff from his fulltime employer. The employer was unable to provide him with more work during this time but would have provided him with what work he had been doing. The employe did not show it was economically unfeasible for him to do the part time work.

This case is complicated because the employer does not have the supervisor the employe talked to at the hearing and because unemployment law requires a determination on why the employe was not working. While both parties believe an employment relationship continued that is not true for unemployment purposes which require either a finding of a discharge by the employer, a quit by the employe or a voluntary leave of absence for a definite period of time. I believe even based on the employe's own testimony that the employe was on a voluntary leave for the time he was off work from Keane. The supervisor told him to give them a call but he did not because he got a letter from unemployment saying he quit at the employer.

I would reverse the decision and find that the employe was on a voluntary leave of absence for a definite period of time which suspended benefits.


____________________________________
Pamela I. Anderson, Commissioner


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