MICHEAL S WADE, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

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:

The employee worked two days in an assignment for a client of the employer. He was paid $6.60 per hour for full-time work on second shift. The position was located in Sussex, Wisconsin. The position ended and the employee contacted the employer for further work. On June 27, the employer offered the employee a second-shift job in Sussex, Wisconsin, paying $7.00 per hour, for performing general labor. The employee refused the assignment. He was advised that such refusal would constitute a constructive quit. The employee's contract of hire, Exhibit 1, alerts workers that if the worker does not accept scheduled work assignments the employer may assume that a voluntary termination has taken place.

A certified expert report on labor market conditions (COED) indicates that for the job offered the employee on June 27, and similar jobs in the employee's labor market, second-shift work is only 21.67% of all full-time work, a substantially less favorable rate of pay is anything under $7.09 per hour, and workers typically travel 11.52 miles for such work.

The issue to be decided is whether the employee voluntarily terminated his employment for any reason permitting immediate benefit payment.

The commission finds that the employee failed to establish that he quit his employment with good cause attributable to the employer or for any other reason permitting immediate benefit payment. The employee did not appear at the hearing to explain his reason(s) for refusing the offered work. The employee was offered a position that paid more than his previous position with the employer.

The commission therefore finds that in week 27 of 2000 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $1,709.00 for weeks 28 through 35 of 2000, $16.00 of which is included in the amount set forth by an initial determination dated June 28, 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1). The total amount to be repaid as a result of this decision is $1,693.00.

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as 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, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2000, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,693.00 to the Unemployment Reserve Fund. The employee requalified for benefits as of the time he next claimed benefits, week 22 of 2001.

Dated and mailed November 2, 2001
wademic . urr : 132 : 1 : VL 1025

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer maintains in its petition that the ALJ erred in obtaining a COED report because the labor market standards provision is not applicable. This is inaccurate. The conditions of employment are relevant in determining whether an employee quits work within a statutory exception after completion of the first assignment. Indeed, in Linde the court affirmed the commission's finding that the employee had good cause attributable to the employer for quitting after the first assignment because he was offered work at a lower rate of pay than his previous position, and that rate of pay was below the substantially less favorable level. Therefore, Linde holds that while a second offer of work or a second assignment is not "new work," other provisions of the unemployment insurance law still apply with respect to whether the employee is eligible for benefits. Further, the court in Linde did not limit good cause attributable to situations where an employee is offered a wage rate that is less than his previous wage rate and substantially less favorable, but was simply applying the law to the facts before it.

The commission disagrees with the ALJ's legal conclusion that the facts establish that the employee quit with good cause attributable to the employer, particularly since the employee did not appear at the hearing in this matter to state his objections to the offered work. The commission did not consult with the ALJ regarding witness credibility as it does not disagree with any credibility determination made by the ALJ but rather reaches a different legal conclusion.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

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uploaded 2001/11/05