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


TAMARA KING, Employe

QUALITEMPS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97000831MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter on March 7, 1997. On July 9, 1997, the Department submitted a written request that the commission reverse the appeal tribunal decision on the grounds of mistake. The commission has considered the Department's position and has reviewed the record in this matter. Based on the applicable law, records and evidence in this case, the commission exercises its authority under Wis. Stat. § 108.09 (6)(c) and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for Omni Softgoods. The employe did not have a title but did ordering, trade shows, and visited/trained customers. She worked 40 hours a week and earned $37,500 per year, or $18.02 per hour. Her last day of work was November 18, 1996 (week 47) when she was laid off.

The employe accepted employment with the temporary help employer. The employe indicated at the time of hire that she preferred assignments lasting two to four days so that she would have time to interview and send out resumes on her days off. The employe was looking for a permanent full-time office management position paying at least $30,000 per year.

The employe was given an assignment as a receptionist. The position was 40 hours per week and paid $8.50 per hour. In the employe's labor market, the prevailing rate of pay for a receptionist position is $7.65 per hour. A substantially less favorable rate of pay is a wage rate of less than $6.50 per hour. The employe was not told how long the assignment would last. She began that assignment on December 2, 1996 (week 49). The assignment was scheduled to end on January 3 or 6.

On or about December 17, the employe notified the employer that she would be unable to continue in the assignment because she was getting telephone calls for interviews for jobs and it was difficult for her to go to the interviews while working full time. The employe indicated she wanted to work three days per week so she could have two days to schedule interviews. The employer agreed to remove her from the assignment and she was removed on December 17, when the employer found a replacement for her.

On December 23, the employe submitted a resume to Storch International for a "temp to hire" position. Storch was trying to fill a position but wanted to bring a worker in on a temporary basis in order to determine whether he/she was a good match for the position. The employe interviewed for the Storch position on December 24, and January 2. After the January 2, interview she was informed that she was being given the position, but that she could not start until January 21, because Mr. Storch was traveling. The employer did not offer the employe any assignments between December 17 and January 21. The employe worked at Storch through the temporary help employer. Mr. Storch promised her a permanent position after 10 weeks.

The initial issue to be decided is whether the employe voluntarily terminated her employment or was discharged. The second issue is whether the employe is eligible for benefits based on her separation from employment.

The ALJ rejected the employe's contention that she had not quit her employment with the employer, but merely one assignment. The ALJ reasoned that the employe chose to remove herself from work the employer had available with no assurance that the employer would have any other assignments immediately available to her. The ALJ found that the resulting loss in employment was the choice of the employe and her actions constituted a quitting for unemployment purposes.

The commission agrees with the ALJ's finding that the employe quit her employment. This was an ongoing assignment that was to last a number of weeks. This was not a situation where the employe needed to miss a day or two because of medical appointments or temporary transportation problems. Further, there was no assurance at the time the employe was replaced whether or when additional work would be available and offered.

The ALJ found that the employe's quitting was not for any reason permitting immediate benefit payment. The ALJ specifically found that the quit same good cause provision of Wis. Stat. § 108.04 (7)(e) did not apply. The ALJ noted that the employe may have had good cause for refusing the work initially because it was at a lower grade of skill and substantially lower rate of pay than her most recent job, however, the ALJ found that the employe quit her employment due to the full-time nature of the job rather than due to any concerns with the skill level or rate of pay involved. The ALJ concluded that she did not quit with the same good cause for which she could have originally refused the work.

The commission disagrees with the ALJ's legal conclusion that the employe did not quit with the same good cause she would have had for refusing the job. The employe had statutory good cause under the canvassing provision of Wis. Stat. § 108.04(8)(d), to refuse the job initially because of the significantly lower rate of pay and skill level. (1) The canvassing period lasts a minimum of 3 weeks and a maximum of 6 weeks. The employe accepted the position in her second week of unemployment. She did not have to accept the job in the first instance because it was of a significantly lower rate of pay and skill level. She quit the job within 10 weeks after beginning the work and within six weeks of being laid off by her prior employer.

The ALJ reasoned that the employe quit her job because of the full-time nature of the job and not with the same good cause she would have had for refusing the position. However, the employe had the same good cause for quitting the job as she would have had for refusing the position. At the time the employe accepted the work, she could have refused the work because it was at a significantly lower rate of pay and lower skill level. She quit that job because she was looking for full-time permanent work paying $30,000 or more. The employe did not quit her full- time position for the employer simply because she wanted a full- time position. The ALJ's reasoning, that the employe quit the work because she wanted to seek full-time employment, ignores the reason why she wanted to seek other full-time employment - because she was looking for permanent work paying at least $30,000.

The commission finds that the administrative law judge committed a mistake as defined in Wis. Stat. § 108.09 (6)(c).

The commission further finds that in week 49 of 1996, the employe accepted work that could have been refused with good cause and that she voluntarily terminated that employment in week 51 of 1996, with the same good cause and within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04 (7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 51 of 1996, if she is otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed August 19, 1997
kingtam.urr : 132 : 2   VL 1025  VL 1034

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

cc:
GREGORY A FRIGO, DIRECTOR
BUREAU OF LEGAL AFFAIRS


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Footnotes:

(1)( Back ) A significantly lower rate of pay is defined by the department to be a pay rate less than 80% of the employe's former rate of pay. The employe formerly earned $18.02. A significantly lower rate of pay is less than $14.416 per hour.