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


STEVEN D DUNLAP, Employee

ADECCO EMPLOYMENT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00607011MW


An administrative law judge (ALJ) 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 has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about two months in an assignment provided by the employer, a temporary employment service. His last day of work was June 16, 2000 (week 25).

After completing work on his last day of work, the employee went to the employer's office to obtain his paycheck. At that time, he was informed that the assignment was over. He later called the employer to express his dissatisfaction with the manner in which he was informed of his layoff. The employer asked whether the employee wanted the employer to contact the branch office to let it know he was available for other offers. The employer could not offer work at the employee's last location because that client was downsizing. The employee indicated he was returning to permanent work, and was dissatisfied with the employer's method of informing him of his discharge, and declined the employer's offer to see if it had any work for him.

The initial issue that must be decided is whether the employee quit or was discharged. If the employee quit, it must be determined whether his quitting was for any reason that would allow the payment of benefits. If the employee was discharged, it must be determined whether the employee's discharge was for misconduct connected with his work.

In this case, the employer ended the employment relationship by laying the employee off when the client ran out of work. In a temporary help situation, the employment relationship may continue when the employer in good faith offers the employee another assignment or the assurance of another assignment. However, in this case, the employer did neither. The employer simply laid the employee off. When the employee later contacted the employer to express his dissatisfaction over the situation, the employer asked the employee whether he would like the employer to see if something was available. This does not constitute either a job offer or assurance of a job in the near future. The employer indicated that there were no policies in place for the ending of an assignment because this varies from client to client. Thus, the employee was not aware that he would be considered to have quit his employment by refusing the employer's offer to look for other work. Thus, the employee was discharged by the employer.

The next issue which must be resolved is whether the employee's discharge was for misconduct connected with his employment. The employer indicated the employee was laid off due to lack of work. The employer did not contend that the discharge was for misconduct. Accordingly, the commission finds that the employee was discharged in week 25, of 2000, but not for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 25 of 2000, if he is otherwise qualified.

Dated and mailed March 9, 2001
dunlast.urr : 145 : 3   VL 1035   VL 1025    SW 853

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found the employee's testimony that he contacted the employer later in the day after he had been laid off to be more credible than the employer's records. The ALJ found the employer's records to be unreliable. At any rate, the commission does not disagree with the ALJ's credibility determination, but finds that the employer failed to offer the employee work or the assurance of work when his assignment ended, thereby discharging him.

cc:
Adecco Employment Services
James B. Schmidt


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uploaded 2001/03/13