DIANNE L EINERSON, Employee
MILWAUKEE INSTITUTE OF
ART & DESIGN INC, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter, finding that the employee failed, with good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a) and (d). The employer filed a timely petition for review. Thereafter, the commission reversed the ALJ's decision and found that the employee failed, without good cause, to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a) and (d).
The employee began an action for judicial review of the commission's decision. On March 1, 2011, the Milwaukee County Circuit Court, Branch 10, issued a decision setting aside the commission decision because the commission decision made different factual findings than the administrative law judge without consulting with him concerning witness credibility and demeanor. The court remanded the case to the commission for further proceedings consistent with its decision and final order.
In compliance with the order of the court, the commission consulted with the administrative law judge about witness credibility and demeanor. After consultation with the administrative law judge and a review of the record, the commission makes the following:
The employee worked for approximately two years and three months as a part-time accounts payable specialist for the employer, the Milwaukee Institute of Art & Design, Inc. The employee's last day of work was September 11, 2009 (week 37), when she terminated her employment. The employee has a Bachelor's Degree in Business with Majors in marketing and management information systems. The employee has worked in various professional capacities involving accounts and system analysis work since 1996 with various other employers.
On August 24, 2009, the employee was informed that her part-time position as an accounts payable specialist was being eliminated and that she could accept a newly created position as a full-time accounting clerk/office assistant, with the same rate of pay. The newly created position would be full-time and would include payroll functions and clerical support functions for her supervisor, the employer's controller. The offer also included additional fringe benefits. The employee turned down the position because of the non-professional responsibilities the new position required.
The accounting clerk/office assistant full-time job description outlined the nine essential duties and responsibilities the employee would be expected to perform. (See Exhibit 5). The requirements are as follows:
1. Process accounts payable, including tracking of receiving documents, follow-up for proper approvals, data entry of invoices/vouchers payable, payment/check processing and all related filing.
2. Maintain vendor database and relationships.
3. Responsible for annual 1099MISC processing and reporting.
4. Process payroll, including new employee record set-up, follow-up for proper approvals, editing and balancing payroll submissions, and distribution of paychecks.
5. Reconciliation and submission of employee retirement contributions and flex spending contributions.
6. Assist Accountant with reconciliation of accounts payable and payroll general ledger accounts.
7. Assist with preparation of documentation required for annual audit.
8. Provide administrative support to Controller including scheduling of meetings, document preparation, meeting minutes, and general office assistance.
9. Special projects as assigned.
The record establishes that of the nine essential duties and responsibilities outlined above, six of these duties and responsibilities were included in the employee's former part-time job as an accounts payable specialist. These duties and responsibilities took approximately 23 hours per week to perform, leaving approximately 14.5 hours to perform the remaining responsibilities. (See Transcript pages 29-30).
The employee and controller offered conflicting testimony regarding the percentage of clerical work the employee would have to do in the newly created position. The employee testified that she would have to perform approximately 10.5-13.5 hours of clerical work per week, depending on how long it would take her to perform her non-clerical duties. (See pages 35-36 of the transcript). The controller testified that only 5 percent of the new job would constitute clerical work, but also that approximately 4.5 to 6.5 hours per week would constitute clerical work based on the number of hours it would take the employee to do payroll. (See page 15 of the transcript). The employee refused the newly offered position because of the non-professional or clerical responsibilities stating that these new responsibilities required significantly less skills than what had been required for her most recent employment.
The issue to be decided is whether the employee failed to accept an offer of work and if so, whether good cause existed for failing to accept that offer, within the meaning of Wis. Stat. § 108.04(8)(a) and (d).
Wisconsin Statute § 108.04(8)(d) provides, in relevant part, as follows:
"An employee shall have good cause under paragraph (a) or (c), 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' prior job skill and rate of pay."
This statutory subsection permits claimants to postpone "lowering their sights" for a six-week period during which "claimants have the right to refuse an offer of work at a lower grade of skill or significantly lower rate of pay." DILHR v. LIRC, 193 Wis.2d 391, 398, 535 N.W.2d 6 (Ct. App. 1995).
The employee declined to accept the newly created position because she believed the remaining portion of the newly created position required non-professional responsibilities, responsibilities requiring significantly less skills than were required for her most recent employment with the employee. The six-week canvassing period provided for in Wis. Stat. § 108.04(8)(d) had not expired. Based upon the record, including the conflicting testimony offered by both the employee and controller, the commission concludes that the employee had not had sufficient time to seek work in line with the skill levels demanded of her on her most recent job and that the new work offered a significant amount of work that involved a substantially lower grade of skill than applied to her most recent job.
The commission therefore finds that in week 37 of 2009, the employee failed, with good cause, to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a) and (d).
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. There is no overpayment as a result of this decision.
Dated and Mailed April 29, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
Laurie R. McCallum, Commissioner
The commission conferred with the administrative law judge as to his credibility assessment and demeanor impressions of those who testified. Hakes v. LIRC, 187 Wis.2d 582, 587, 523 N.W.2d 155 (1994). The employee and controller offered conflicting testimony regarding what percentage of the new position would be comprised of clerical work. The ALJ recalled that each party provided a projection as to the percentage of clerical work the newly created job would constitute and while he noted that the employer did not make these changes to induce the employee to quit, he did credit the employee more than the controller as to the percentage of clerical work the employee would be expected to perform. The ALJ recalled that the employee offered credible testimony that the anticipated clerical work went beyond the bullet points listed in the employer's job description at Exhibit No. 5. Consequently, the canvassing period allowed in Wis. Stat. § 108.04(8)(d) supports the finding that the employee failed to accept an offer of work with good cause pursuant to Wis. Stat. § 108.04(8)(a).
SW 800 : SW 806
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