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


DEBRA  L  DI GIACOMO, Employee

ROYALL SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000550MD


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for four and one-half years as a full-time teaching assistant for the employer, a Wisconsin public school district. Her last day of work was on or about May 31, 2000 (week 23) when she was laid off. Subsequently, she relocated to Illinois where she worked eight weeks as a teacher's aide for a school district. She quit on December 18, 2000 (week 52) to take other work.

The employee began work as a teacher's aide on October 30, 2000 (week 45.) This work involved 32.5 hours per week at a wage rate of $9.56 per hour. The employee quit this job to accept 44 hours of work per week at a rate of $8.50 per hour, resulting in a higher weekly wage. She worked only a single week in that new job before she was laid off. She reactivated her benefit claim in week 53.

The issue is whether her quitting falls within any exception permitting the immediate payment of benefits.

The circumstances of the employee's quitting fall within Wis. Stat. § 108.04(7)(L) which provides an employee may be immediately eligible for benefits if she quit to take work which offered a higher average weekly wage, or a greater number of hours, or a significantly longer term than the work terminated. The employee quit to take work with a higher weekly wage, more hours and a longer term, however she was laid off before she was able to earn four times her weekly benefit rate in the new work and therefore had not yet requalified.

The statute also provides at Wis. Stat. § 108.04(7)(e), that an employee who accepts work which she could have refused with good cause and then quits that work within 10 weeks for the same good cause, she is eligible for benefits. Since the employee worked fewer than 10 weeks in the new job, the commission will consider whether the employee could have refused the work because it was substantially less favorable than similar work. The Labor market report in the record indicates that only 10 percent of similar jobs in this labor market, defined as both teachers' aides and other educational workers, work 32.5 hours or less per week. The employee quit this work because it was part-time.

Wisconsin Administrative Code DWD 100.02(28) defines "full time" as 35 hours of work per week or more The labor market report shows that even educational workers in this labor market who presumably work a full school day still work more than this employee did in 90 percent of the cases. This part-time work is not prevailing for similar work in her labor market. Since the lack of hours and commensurate lack of weekly pay were the reasons the employee quit, the commission finds that the employee quit within 10 weeks with the same good cause that she could have refused the work.

The commission therefore finds that the employee accepted work with a non-subject employer in week 45 of 2000, that could have been refused with good cause, and that the employee voluntarily terminated that employment in week 52 of 2000, 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 employee is eligible for benefits beginning in week 52 of 2000 if otherwise qualified.

Dated and mailed April 27, 2001
digiade . urr : 178 : 1  VL 1034  VL 1037

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. Its decision is not based on any differing assessment of witness credibility but on a different conclusion of law. Although the employer disputed at the hearing that 32.5 hours of work was non-prevailing, the commission accepts the labor market report as the only persuasive evidence in the record concerning the prevailing conditions in the employee's labor market.

cc: Regional Office of Education


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uploaded 2001/05/08