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


RERBENA M HALL, Employe

AAA SIGN CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601301MW


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:

Paragraphs 4 and 5 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

Pursuant to Federal Department of Labor Program Letters 984 and 41-98, new work is defined to include "an offer by an individual's present employer of . . . (d)ifferent terms or conditions of employment from those in the existing contract." The employer's action in reducing the employe to part-time status was a significant change in the employment relationship between the employe and employer, such that a new contract of employment came into existence. As such, the new employment was "new work" within the meaning of Wis. Stat. § 108.04(9)(b), which provides that unemployment insurance may not be denied for refusing to accept new work if the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

By operation of Wis. Stat. § 108.04(7)(e), the general quit disqualification of (7)(a) does not apply if the employe accepts work she could have refused under Wis. Stat. § 108.04(9) and terminates such work within the first ten weeks after starting the work. As indicated above, part-time work constitutes less than 5 percent of similar work in the employe's labor market.

To be "prevailing," a condition must be present in 75% of similar work in one's labor market area. The employe's refusal of the work therefore is not disqualifying, by operation of Wis. Stat. § § 108.04(7)(e) and (9)(b). It is therefore found that the employe could refuse the new employment, because the wages, hours (including arrangement and number), or other conditions of the work were substantially less favorable to the employe than those prevailing for similar work in the locality, and that the employe voluntarily terminated that work in week 1 of 2000, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed June 22, 2000
hallrer.umd : 105 : 1 SW 844         

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The dissent asserts that the employer was not trying to lower labor standards, by changing the employe's hours from full time to part time. This misses the point of the labor standards provision, however. That purpose is "to prevent the unemployment compensation system from exerting downward pressure on existing labor standards." Unemployment Compensation Program Letter No. 130 (Department of Labor 1-6-47). The applicability of the provision does not depend upon whether it was an employer's actual intention to lower labor standards. Any such intention is irrelevant. The State of Wisconsin's Industrial Commission, the predecessor to the commission, affirmed the exact language quoted above in its Memorandum No. 324 to District Examiners (August 2, 1950).

The dissent also calculates that, in the last few months of the employe's employment, she was averaging approximately 30 hours of work per week, even though scheduled for 40. This calculation does not take into account unusual absences of the employe, however, such as the several days in early December of 1999 the employe took off because of the birth of her grandson. The dissent's calculations also do not take into account days late in the employe's employment when she was absent due to illness. For these reasons, it is inappropriate to assert that the reduction from full-time to part-time work was not substantially less favorable to the employe.

cc: ATTORNEY TODD R KORB
STUPAR SCHUSTER & COOPER SC

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. While I agree that the new work standard should be applied, I believe in this case that hours of work were not substantially less favorable to the individual than those prevailing for similar work in the locality. While it is true that part-time work is not likely to be prevailing for this type of work, I do not believe it was substantially less favorable to this employe. The employe had averaged 29.647 hours for the last four months and 29.25 hours for the last 3 months even though she was scheduled for 40 per week. The employe had four weeks in this time period where she worked less than 23 hours per week. The employe was out of sick leave in early March. The employer had repeatedly warned her that they would reduce her hours to three 9 hour days if she did not improve her attendance. The employer indicated that she would continue to have health insurance even though she was working part-time.

The employer was upset with absences like December 14 when the employe called to come in late because she had a doctor's appointment but then did not come in after the doctor's appointment and so she missed the whole day. In this case, the employer would have been able to fire the employe but rather than do that it tried to work with her. The employer was not trying to cut costs or lower labor standards in this case. If it had been intending to cut costs it would not have continued the employe health insurance as a part-time employe. The employer was trying to impress on the employe the importance of reporting to work. Regardless of the job this employe has, it will be in jeopardy if she is not able to work on a full-time basis.

For these reasons, I would reverse and find that the employe quit and not within any exception that would allow for the immediate payment of benefits.


______________________________________
Pamela I. Anderson, Commissioner


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