MICHAEL S LEPORI, Employee

SPHERION ATLANTIC WORKFORCE LLC, Employer
c/o UC EXPRESS

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:

The employee worked for two days as a hand packager on a job assignment for the employer, a temporary employment agency. His last day of work for the employer was August 29, 2002 (week 35), when he terminated his employment.

The employee terminated his employment for a number of reasons, including the fact that he found the hourly wage rate of $8.50 paid by the employer inadequate in comparison to the $14.75 per hour wage that he had earned in his previous employment. The employee had last worked in previous employment during the week ending on July 13, 2002 (week 28), when he became unemployed. He then initiated a claim for benefits beginning in week 29 of 2002.

Since the employee terminated his employment with the employer, the issue presented is whether his quitting fell within any statutory exception that permitted the immediate payment of benefits.

Wisconsin Statute § 108.04(7)(a) provides that if an employee terminates work with an employing unit, the employee is ineligible for benefits until the employee meets the requalification requirements stated under that section. However, there are several exceptions to the quit disqualification for benefits under Wis. Stat.
§ 108.04(7)(a). One such exception is provided in Wis. Stat. § 108.04(7)(e). Section 108.04(7)(e) provides that the quit disqualification under 108.04(7)(a):

"[D]oes not apply if the department determines that the employee accepted work which the employee could have failed to accept with good cause under sub. (8) and terminated such work with the same good cause and within the first 10 weeks after starting the work, or that the employee accepted work which the employee could have refused under sub. (9) and terminated such work within the first 10 weeks after starting the work.."

Wisconsin Statute § 108.04(8)(d) provides, in relevant part, as follows:

"An employee shall have good cause under [§ 108.04(8)(a) for failing to accept suitable work offered.] regardless of the reason articulated by the employee for the failure, if the department determines that the failure involved work at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs, and that the employee had not yet had a reasonable opportunity, in view of labor market conditions and the employee's degree of skill, but not to exceed 6 weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay."

A certified expert report on labor market conditions presented at the hearing established that the employee's $8.50 hourly wage rate for work as a hand packager at the employer was not substantially less favorable than what existed for similar work in the employee's labor market. However, only seven weeks earlier the employee was earning $14.75 per hour in his previous employment, where he had worked for five years. The job he took with the employer amounted to a
$6.25 per hour reduction in pay. Further, at the time the employee took the job with the employer he was not receiving any unemployment benefits because an initial determination had found that he was ineligible for benefits. (The initial determination which found the employee ineligible for benefits was subsequently reversed by an appeal tribunal decision dated September 16, 2002.)

While the employee was outside the six-week canvassing period when he accepted work for the employer at $8.50 per hour, the commission and the courts have adopted a "sliding scale" for the period after the canvassing period to determine whether the employee meets the good cause standard under Wis. Stat. § § 108.04(7)(e) and 104.08. See, Holifield v. P A Staffing Ser Inc. (LIRC, 02/03/00), citing DILHR v. LIRC, 193 Wis. 2d 391, 402, 535 N.W.2d 6 (Ct. App. 1995) (After the canvassing time period LIRC still retains the discretion to decide, based on a claimant's particular circumstances, whether the offer is suitable work, taking into account the pay, skill level and period of unemployment); Harnly v. Plant Marketing LLC (LIRC, 04/30/02), citing Hubert v. LIRC, 186 Wis. 2d 590, 601, 522 N.W.2d 512 (Ct. App. 1994) (LIRC's definition of suitable work -- work that is reasonable considering the claimant's training and experience and the length of the claimant's unemployment extending beyond the six-week canvassing period in § 108.04(8)(d) -- is upheld).

The reduction in the employee's hourly wages from $14.75 to $8.50 was a significantly lower rate of pay. He had just entered his seventh week of unemployment when he accepted the significantly lower rate of pay. In addition to the low pay, the employee testified that the job provided no benefits and that it would be six months before he could get health insurance. He quit this employment after working two days. While the longer the employee has been unemployed, the more he is expected to "lower his sights" as to what work he might accept, the commission does not find it reasonable that he should have been obligated to "lower his sights" to the level of wages and lack of benefits that he would have incurred in employment with the employer.

The commission therefore finds that in week 35 of 2002 the employee terminated work with the employer, which he could have refused to accept with good cause, and that he terminated such work with the same good cause and within the first 10 weeks after starting the work, within the meaning of Wis. Stat. § 108.04(7)(e).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2002, if otherwise qualified. As a result of this decision there was no overpayment of $3,410.

Dated and mailed September 19, 2003
lepormi . urr : 125 : 3  SW 806  SW 875.05 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission's reversal of the administrative law judge's decision in this matter was not based on a differing credibility assessment but made as a matter of law.

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uploaded 2003/09/23