Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Ronald Berry, et al, Plaintiffs, (Hrg. No. 95002120LXG) v. Labor and Industry Review Commission and Department of Military Affairs, The Adjutant General, Defendants, Case No. 95-CV-263 (Wis. Cir. Ct., Juneau Co., November 21, 1996) NOTE: Appealed to Court of Appeals;  affirmed by Court of Appeals September 18, 1997 sub nom.  Berry et al. v.  LIRC, Department of Military Affairs, the Adjutant General, 213 Wis. 2d 397; 570 N.W.2d 610 (Ct. App. 1997)

Digest Codes: VL 1054.01

The 19 employes were national guardsmen whose positions were federally funded by the Department of Military Affairs. The employer received notice from the national guard bureau that there would be a shortage of federal funds for the upcoming fiscal year, and that funds were being authorized for early retirements and buy outs. The employes met the requirements for these separation options and chose either an early retirement or a buy out. They claimed that their terminations were in lieu of the terminations of other employes, within the meaning of Wis. Stat. 108.04 (7)(am).

The commission found that the employer never received a mandate to terminate any of its employes, and never did terminate any of them. The employes were given a choice to retain their jobs or accept either an early retirement or a buy out.

Held: Affirmed. The statutory exception can be rationally and reasonably interpreted to require a direct correlation between the employment of the individual claiming benefits and a person identified for suspension or termination. Credible evidence demonstrates that the employes had the option to continue employment with the employer but chose instead to accept the offer of voluntary buy out or retirement. The employes failed to establish that another employe had been identified for suspension or termination at any point if they continued their employment with the employer.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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