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

KURT W ROSKOPF, Employee

RICHFIELD VOLUNTEER FIRE CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04609293MW


An administrative law judge (AU) 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 issued a decision on December 30, 2004, affirming the decision of the administrative law judge.

The employee commenced a proceeding in circuit court for judicial review of the commission's decision, as well as of a companion decision issued by the commission which concerned the question of whether the claimant had concealed material facts from the department. The circuit court issued a Decision on August 12, 2005, followed by an Order issued on September 9, 2005, setting aside both decisions of the commission. The court remanded the matter to the commission for it to consider and make findings on the issue of whether the employee's separation was within the exception provided for  in Wis. Stat. § l08.04(7)(p), and to then reissue decisions in both matters.

Based on its review of the evidence in the record, and having re-considered the entire matter, including the separation issue identified by the circuit court, the commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked three years as an emergency medical technician for the employer, a private company that provides fire and emergency medical services for various townships. His last day of work was September 21, 2003 (week 39).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether his quitting was .for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether his discharge was for misconduct connected with his employment.

The employee attended one meeting per week for the employer, for which he was paid $8. He was also paid an hourly rate of $8 when responding to an emergency call. He was paid once per year during the month of December. In 2003 he earned $630 for his work for the employer.

Due to the rapid response time required of its emergency services personnel, the employer requires members of its emergency response team to live within two miles of the fire station. At the time of his hire the employee was aware of this requirement, and lived within the area required.

The employee knew that if he moved out of the area within which the employer required him to live, his employment with the employer would end, and that if he did not move out of that area, his employment would continue. Notwithstanding this, in September, 2003 the employee and his wife decided to move to another township. They made this decision because the employee had sued the township in which they were currently living and because a move would reduce his wife's daily commute to work. While the employee anticipated that he would perform similar work for another volunteer fire department in the area of his new residence, this was not one of the reasons that he decided to move out of the area in which he was required to live as an employee of the employer.

On September 8, 2003 the employee and his wife sent a letter to the employer stating that they were moving and that "this pursuit has obvious implications on our ability to take any duty time" with the employer. The employer offered the employee the opportunity to continue his employment by reporting to the employer's station on weekends to accept any calls that came in. However, the employee declined this offer, because the employer would not guarantee him payment for the time he spent waiting at the employer's station. As a result, the employment relationship ended.

After the ending of his employment with the employer, the employee was employed in a similar capacity with the Lisbon Volunteer Fire Department. While the employee was aware before he ended his employment with the employer, that he might be able to obtain employment with the Lisbon Volunteer Fire Department after he moved to its area, he had not actually been offered employment with the Lisbon Volunteer Fire Department before he ended his employment with the employer. The employee also did not end his employment with the employer in order to be able to accept offered employment; rather, he ended his employment with the employer because he decided, for other reasons, to move his residence out of the area within which the employer required its employees to live.

The employee contended that he was discharged from his employment. This contention cannot be sustained. The employment relationship ended because the employee moved outside of the area served by the employer and outside of the residential boundaries required by the employer. Had he not moved the employment relationship would have continued. The concept of voluntary quitting is not limited to the employee who says, "I quit." Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). Rather, the courts have consistently held that an employee can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson, 94 Wis. 2d at 119; Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963). The employee's actions in moving outside of the area served by the employer and outside of the residential boundaries required by the employer, with knowledge that this would cause the employment relationship to end, was inconsistent with the continuation of the employment relationship, and it therefore constitutes a quitting for purposes of determining eligibility for unemployment compensation benefits.

The Unemployment Compensation Act creates a general rule, in Wis. Stat. 108.04(7)(a), that if an employee quits a job their benefit eligibility shall be suspended.  (1).   This "quit disqualification" applies to the employee's entire benefit eligibility, even if that eligibility is based on previous employment in another job which the employee did not quit. The disqualification also applies to the employee's entire benefit eligibility even if that eligibility was based on previous full-time employment and the employment which the claimant quits is merely part-time. While this disqualification may seem disproportionate in cases such as this one, in which the quitting of a part-time job offering very few hours of work results in the loss of a significant eligibility which is based on previous full-time work the employee had not quit, it reflects a judgment by the legislature that it is necessary to the purposes of the Act that benefit claimants be expected to keep any work they have and be discouraged from quitting any work.

The quit disqualification is subject to a number of exceptions, described in subsections of Wis. Stat. § 108.04(7). The commission has carefully considered whether any of these exceptions could be found to be applicable to the employee's situation.

Under Wis. Stat. § 108.04(7)(L), the quit disqualification does not apply if the employee terminated work to accept certain other work which offers comparable wages or hours, or a longer term of employment, or a location closer to the employee's home. The employee's new position with the Lisbon Volunteer Fire Department offered him an increased hourly rate of pay, mare hours of work, and was closer to his new home. However, the statute also provides that for this exception to apply, the employee must also earn four times his weekly UC benefit rate in his subsequent employment. The employee's weekly benefit rate was $329. Four times this amount equals $1316. It was not established at the hearing that the employee had earned this amount from his subsequent employment. Thus it could not be found that this exception to the quit disqualification was applicable. In any event, this exception could not be found applicable for the reasons discussed below, which are that the employee did not quit his job with Richfield "to accept" work with Lisbon.

As directed by the circuit court, the commission has considered the question of whether the employee's separation could be fit within the exception created in Wis. Stat. § l08.04(7)(p), which provides that the quit disqualification:

(p) ... does not apply if the department determines that an employee, while claiming benefits for partial unemployment, terminated work to accept employment or other work covered by the unemployment insurance law of any state or the federal government, if that work offered an average weekly wage greater than the average weekly wage earned in the work terminated.

Wis. Stat. § 108.04(7)(p) applies in cases in which the employee "terminated work to accept employment or other work." Two things are clear from this language. First, it is clear that more than a mere chronological connection is required. The statute does not say, "terminated work and then accepted employment or other work"; it says "terminated work to accept employment or other work" (emphasis added). Thus, accepting new work must not merely be something which occurs after quitting the old work; it must be the reason for quitting the old work. Second, it is clear that the new work must have actually been offered to the employee before the employee quits his or her old job. The statute does not say, "terminated work to look for employment or other work"; it says "terminated work to accept employment or other work" (emphasis added). Acceptance contemplates the existence of an offer; one can only "accept" employment which has been offered. Thus, there must have been an offer of new, higher-paying work which the employee then quits their old job in order to be able to accept.

This interpretation of Wis. Stat. § l08.04(7)(p) is not only most reasonable given the language of the provision, but is also most consistent with the purposes of the UC Act. The purpose of the Act is to help stabilize the economy by providing benefits to those who are out of work through no fault of their own. Wis. Stat. § 108.01(1). Salerno v. John Oster Mfg. Co., 37 Wis. 2d 433, 441, 155 N.W.2d 66 (1967). It was not intended to provide relief when reasonable work is available which the employee can but will not do. Roberts v. Industrial Comm., 2 Wis. 2d 399, 403, 86 N.W. 2d 406 (1957). Persons such as the employee herein, who have been laid off from full-time work but have some part-time work available to them, are expected to retain what remaining employment they have. If the exception in § l08.04(7)(p) were construed to apply to any case in which such a person quit their part-time job and then subsequently found and took another job which paid more, with the assurance that they could draw full unemployment benefits in the interim no matter how long that might be, it could serve as an inducement to such persons to quit their part-time jobs based on mere speculation that they might at some point be able to find better ones. This would not be consistent with the purpose of the statute. Certainly, it is appropriate and indeed desirable for unemployed persons to attempt to increase their income from employment, but they should be encouraged to keep what employment they have until they receive a definite offer of better employment to replace it with. Construing this exception in this fashion, serves that purpose.

The commission has interpreted Wis. Stat. § 108.04(7)(L), which includes the same language ("terminated work to accept employment or other work"), in this fashion. Thus, in Steidl v. Chemotech Printing Supplies, Inc. (LIRC, August 10, 1989), the commission found the (7)(L) exception to be applicable based on the fact that the employee there did not quit her job until she had obtained the offer of employment for the job she took, and the fact that once she obtained that offer, her quit was clearly tendered in order to allow her to accept the offer and take the other employment. Thus, the commission recognized the two important elements as being that an offer of other employment is made before the quitting, and that the reason for the quitting is to be able to accept the offer.

For these reasons, the commission believes it is most reasonable to interpret the "terminated work to accept employment or other work" language in Wis. Stat. § l08.04(7)(p) as applying to situations in which an employee quits a part-time job specifically in order to be able to accept an offered new job.

It is clear from the evidence, that the employee did not quit his job with the employer in order to be able to accept an offer of a job from Lisbon. The employee's testimony makes it clear, that he had not been offered employment with another volunteer fire department when he quit his job with the employer:

Q: Did you have the jobs lined up with the other fire departments at the time you moved?

A: In a various (unintelligible) fashion. The departments didn't give any official indication until long after we moved.

(T. 23). The employee also testified:

Q: (Unintelligible for several words). Exhibit 1 does say (unintelligible for several words) pick up uniform and pagers for Lisbon. Did you have that job before you -

A: I guess you would say in a procedural and verbal sense. But my recollection is there was something working with the officers at Lisbon that they were just very clear and obvious that until we moved this is all just getting ahead of the game. That the board of Lisbon would still have the right to deny me as an employee after we moved. Which just everybody assumed that it made sense for everybody, so let's get the ball rolling. And that was by my request. The sooner the better for me. And if they can do it, that would be great.

(T. 26). The employee did not quit his job to accept work which had definitely been offered to him. In addition, the employee's reasons for deciding to move and thus, his reasons for deciding to quit involved other, personal considerations. He did not quit his job in order to accept a new job. Therefore, the commission concludes that Wis. Stat. § 108.04(7)(p) does not app[y to this case.

None of the other exceptions to the quit disqualification in Wis. Stat. § 108.04(7), are arguably applicable to the employee's situation. Therefore, the employee's eligibility for benefits was suspended by his quitting of his job with the employer.

Having determined that the employee is ineligible for benefits because of his quitting, it must also be determined whether he has received any benefits in error, the amount of those overpaid benefits, and whether those benefits must be repaid to the department.

The legislature has determined that, as a general rule, when benefits are paid to a claimant and it is subsequently determined that the decision to pay those benefits was not appropriate under the Act and the claimant was thus not entitled to them, the claimant must repay the benefits. The legislature decided to establish only a relatively narrow set of exceptions to this general rule. The narrow exceptions are set out in Wis. Stat. § 108.22(8), which provides:

1. The department shall waive recovery of benefits that were erroneously paid if:

a. The overpayment was the result of a departmental error and was not the fault of any employer under s. 108.04 (13) (1); and

b. The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f), or because of a claimants false statement or misrepresentation.

The reason that the employee was paid benefits in error in this case was that when he filed claims for benefits, nothing in the answers he provided put the department on notice of the fact that his employment with the employer had ended. Thus the department did not investigate the circumstances of that separation as soon as it might have. The erroneous payment of benefits was thus not due to any error by the department, since the department's decision to initially allow payment of benefits was appropriate given the information the department had available to it. Under § 108.22(8), there are three conditions which must all be met before a waiver can be deemed appropriate: the overpayment must be the result of department error, must not be the fault of an employer, and must not be the fault of the employee. Since the overpayment was not the result of department error, waiver of recovery of benefits cannot be found appropriate.

The commission therefore finds that in week 39 of 2003, the employee terminated work with the employing unit, within the meaning of section 108.04(7)(a) of the statutes, and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $1233 for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the statutes, and that the entire amount must be repaid to the department because the overpayment was, not due to any error by the department, within the meaning of section 108.22(8)(a) and (c) of the statutes.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2003, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1233 to the Unemployment Reserve Fund.

Dated and mailed September 19, 2005
roskopf.usd : 110 : 2   VL 1037

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



Appealed to Circuit Court. Reversed October 31, 2006.  [Summary of Circuit Court decision]

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Footnotes:

(1)( Back ) This suspension lasts unless and until the employee meets certain "requalification" requirements. To requalify for benefit eligibility after a disqualifying quit, four weeks must have elapsed since the week of the quitting, and the employee must have earned wages in covered employment equaling at least four times his weekly benefit rate. Wis. Stat. 108.04(7)(a).

 


uploaded 2006/11/20