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

Subject: Kohler Company  v. LIRC & Joshua M. Chodak, Case 97-CV-89 (Wis. Cir. Ct., Sheboygan Co., August 6, 1997)

Digest Codes: AA 110 - Due notice to report to work   AA 126.4 - Voluntary LOA for a definite period - "Voluntariness" of leave - scheduled plant shutdown

The employe worked in production for the employer for approximately two years. The plant was shut down for the weeks ending 7/27/96 (week 30) and 8/3/96 (week 31), and employes with two weeks of vacation automatically had those weeks allotted to the shutdown. Employes with only one week of vacation, such as the employe, had that week allotted to one of the two weeks of shutdown.

Approximately two weeks prior to the shutdown, the employer posted a sign up sheet for employes who wanted to volunteer to work in either the first or second week of the shutdown. By 7/6/96, enough workers had signed up to cover the employer’s needs for both shutdown weeks, but the employer could have found work for more workers in the first week. The employe did not sign up for either week, and his one week of vacation was automatically allotted to the first week of the shutdown. He had requested to be off work for both weeks of the shutdown, but would have been required to take one of those weeks off anyway, in order to use his vacation week. The employer required the employe to sign a leave of absence request slip for the second week, and the employe signed this because of the scheduled shutdown.

The commission found that the sign up list did not constitute "due notice" to report for work actually available pursuant to Wis. Stat.  108.04 (1)(a), and that the employe’s requested leave of absence was not "voluntary" pursuant to Wis. Stat.  108.04 (1)(b)2.

Held: Affirmed. There was conflicting evidence as to whether work was actually available for the employe in week 31, and credible evidence supports the commission’s inference that there was not. Furthermore, due notice was not accomplished by posting the sign up list for two reasons: first, this method impermissibly placed the burden on the employe to request the work, while the statute requires the employer to provide notice of work actually available to the employe; and second, it cannot be assumed that all employes will be aware of a posting of a sign up sheet, no matter how careful the employer is about spreading the word.

With regard to the issue of whether the employe’s leave was voluntary, the employe testified that he only requested the leave of absence because of the plant shutdown. Thus, but for the shutdown there would have been no request, and under these circumstances the leave was not voluntary. Also, the employer required the employes to fill out leave of absence forms if they did not sign the sign up sheet. This made the request for a leave mandatory rather than optional. Finally, the employe was not informed that signing the leave request would result in forfeiture of unemployment compensation, and without full knowledge of the consequences of his act, it cannot be considered voluntary.

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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