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

TIMOTHY P REPPEN, Employee

TRILLIUM STAFFING SOLUTIONS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01401899MN


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 the employer, a temporary help agency, at various assignments from March of 1996. His last assignment began on January 3, 2001, and his last day of work was May 3, 2001, (week 18), when his assignment ended.

The issue to be resolved is whether the employee voluntarily terminated his employment with the employer after his last day.

The employee was assigned to work for a food processing company from January until May 3, 2001, and his last position was that of a line leader. The employee worked from 3:30 p.m. until 1:30 a.m., Monday through Thursday. He was notified by the employer that the employer's client wanted to hire him for the same position on a permanent basis. He agreed to be hired directly by the client because it provided for a $1 per hour raise for the same job duties and working hours. The employee signed a termination statement on April 20 stating that he was terminating his employment with the employer to accept a permanent position with the client. Subsequently he began work directly on the client's payroll on May 7 for a four-day period, when he was laid off. He earned about $250 in gross wages during the time he worked directly for the client.

The employer's position was that the employee quit by submitting his resignation in order to accept a job directly with the employer's client. The commission agrees. The commission has addressed the issue of whether an employee who begins working for a temporary help employer, and later transfers to employment with the client of the employer has quit. The commission's decisions rely on whether or not the employee had a choice to continue in the temporary help employment and whether the employee had been informed that she had such choice. In Vicki J Budd v. A Life Style Service, Inc., UC Hearing No. 96-400238AP (LIRC May 10, 1996), the commission found that the employee quit her employment where the employee acknowledged that she could have continued working for the employer by turning down the offer of permanent work. The commission reached a similar result in Kathleen Vanden Berg v. Trinity Resource Corp., UC Hearing No. 95-605562MW (LIRC Dec. 26, 1995). In Vanden Berg the commission noted that the employer was willing to continue the employee's employment if she had not been hired by the client and therefore it was the employee's decision to sever the employment relationship. On the other hand, in Vanessa R. Luster v. A Life Style Service, Inc., UC Hearing No. 96-604265MW (LIRC Sep. 20, 1996), the commission distinguished the cases of Budd and Vanden Berg by noting that in Luster it was understood at the time of hire the employee would be eventually hired by the employer. The commission further stated:

"Unlike the prior cases, the testimony in this case did not establish that the employer was willing to continue her employment if she declined to be hired on a permanent basis by the client. The employer did not indicate that the employee could have continued working for it. Further, even if it were found that the employee could have continued working for the employer, there was no testimony that the employee was aware that she had that option. This distinguishes the present case from the prior cases decided by the commission."

The present case is similar to the Budd case. The employee testified that he was notified he could work directly for the client. He did not object to working for the client and signed an agreement that he had quit. He thought it would be an advantage to work directly for the client because he would get a raise and benefits. The employee was aware because of his other work for staffing services that he could have continued working through the employer at the client. Thus, the commission concluded that it was the employee's decision to work for the client that ended the employment relationship.

The employee has not demonstrated that his quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 18 of 2001, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employee was paid benefits in weeks 20 through 28 of 2001, totaling $1,557.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), he is required to repay such sum to the Unemployment Reserve Fund.

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)

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 18 of 2001, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,557.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 14, 2001
reppeti . urr : 145 : 1 VL 1025

/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 stated that the employee assumed he would be able to continue working for the employer, although he was not explicitly told this. The ALJ further noted that the employer's witness agreed that the employee could have continued working for the client as a temporary worker. The ALJ did not find that particularly credible, because he believed it would not make sense for any of the parties involved. However, the parties agreed that the employee could have continued working for the employer if he had not agreed to begin working for the client. Therefore the commission finds that the employee quit his employment with the employer.

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 2001/11/16