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

JOHN J GIOVANINI, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608230MW

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a temporary help agency, for about two months. His first assignment was at a company called EverBrite. It paid $7.50 an hour and lasted just one day, May 22, 2000. The employee's next assignment consisted of performing janitorial work and general labor at a firm called Baker and Baker. This assignment began on May 25, 2000 and the rate of pay was $7.50 per hour.

On July 21, 2000, the employee notified the employer he was quitting effective July 28 (week 31) because of the low wages. Expert labor market evidence adduced at the hearing established that wages between $7.50 and $8 an hour would be considered substantially less favorable for similar work in the employee's labor market.

As a general rule, employees who quit are ineligible for benefits until they requalify under Wis. Stat. § 108.04(7)(a). However, the statute contains a number of exceptions to this general rule. The question to decide is whether the employee's quitting fell within any statutory exception permitting the immediate payment of benefits.

The exception that seems most likely to apply in this case is Wis. Stat. § 108.04(7)(e), which provides that the quit disqualification does not apply to an employee who accepted work which he could have refused because the wages, hours or other conditions of the work were substantially less favorable than those prevailing for similar work in the locality, and terminated such work within the first 10 weeks after starting the work. This exception was designed to encourage workers to try out nonprevailing work on an experimental basis by permitting them to accept work which could have been refused under Wis. Stat. § 108.04(9), without being made worse off for having done so.

However, in Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993) (hereinafter Linde), the court of appeals limited the circumstances in which the statutory exception contained in Wis. Stat. § 108.04(7)(e) could be applied to temporary help workers. In Linde, the court found that the exception in question applies only to the first assignment a temporary help worker receives upon starting "new work" with a temporary help employer, and that quitting a second or subsequent assignment is not covered under § 108.04(7)(e) unless that assignment constitutes "new work." Thus, when a worker accepts an assignment which could have been refused under the labor standards provisions of Wis. Stat. § 108.04(9), and continues in that position until it ends, no matter how short the duration of the assignment, Wis. Stat. § 108.04(7)(e) cannot be applied to subsequent assignments unless there is an intervening layoff or a change in the original contract of hire. While, as the commission originally noted in Leighton v. Cornwell Personnel Associates, Ltd. (LIRC, June 29, 1994), it does not agree with the court of appeals' interpretation of the statute as articulated in Linde, which has the effect of treating temporary help workers less favorably than other workers and opens the door to manipulation by employers, the commission is nonetheless constrained to follow that interpretation.

The commission therefore finds that in week 31 of 2000, the employe terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), and that his quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in weeks 31 through 34 and week 37 of 2000, totaling $1,159, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

A secondary issue presented in this case is whether the overpayment of benefits to the employee was because of departmental error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of the overpayment.

"Departmental error" is an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10e). In this case, benefits were paid to the employee because the appeal tribunal chose to disregard controlling case law. In similar cases the commission has held that the appeal tribunal's failure to apply Linde constituted a clear misapplication of the law. See Rieger v. Seek Inc. (LIRC, August 8, 2000) and Payne v. Cornwell Personnel Associates Ltd. (LIRC, October 15, 1998). Under these circumstances, the overpayment was caused by a departmental error, and recovery of the overpaid benefits must be waived.

The commission, therefore, finds that waiver of benefit recovery is required under Wis. Stat. § 1088.22(8)(c), because the overpayment was the result of a department error and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(d).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 31 of 2000, and until four weeks have elapsed since the end of the week of quitting, and he has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. Department records reflect that the employee has requalified for benefits as of week 39 of 2000. The employee is not required to repay the sum of $1159 to the Unemployment Reserve Fund.

Dated and mailed March 13, 2001
giovajo.urr : 164 : 1 VL 1025 VL 1034  BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is as a matter of law.

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