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

LISA M REID, Employee

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01401251AP


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 accepted a job for the employer, a temporary help agency, in November of 1999. This temporary job became permanent when the client hired the employee. When the employee was laid off by the client, she again contacted the employer and was given a long term assignment as an administrative assistant paying $12.00 an hour, full time, first shift. That position ended on February 9, 2001 (week 6), when the client made other arrangements. The employee immediately notified the employer and was told that there was no work immediately available but the employer would "do what it could do to find another position for her by February 16."

The initial inquiry is which party was the moving party in the employment separation; that is to say, whether the employee voluntarily terminated her employment or whether the employer discharged or laid off the employee.

As a general rule, a worker who is laid off on an indefinite basis no longer has an employment relationship with the employer A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 266, 276 M.W.2d 279 (1979). However, when there is credible evidence that at the time of layoff there exists an assurance, expressed or clearly implied by circumstances, that work will be resumed at an ascertainable time in the not too distant future, the employment relationship continues. See, Jones v. Seek, Inc. UI Hearing No. 99601034MW (LIRC July 6, 1999); Kathleen J. Wood, v. Seek, Inc., Hearing No. 00601552MW (LIRC May 26, 2000). Applying the law to the facts at hand, the record establishes a layoff. Although the employer promised it would do what it could do to find a position for the employee by February 16, that statement does not constitute an assurance of work in the not too distant future. Therefore, the employer laid off the employee when her assignment ended on February 9, 2001(week 6).

The remaining inquiry is whether the employee failed, without good cause, to accept offers of suitable work within the meaning of Wis. Stat. § 108.04(8)(a). The first assignment offered the employee was a part-time job at $10.00 an hour. The employee refused that work because it was part-time and because it would mean a $2.00 an hour reduction in pay. The employer then offered the employee two more jobs both at $10.00 per hour. One job was at the client the employee had just left as an accounts payable clerk on a full-time basis. The other was as a "staff employee" who could be required to do whatever jobs were available to the employer on a day-to-day basis and, if there were no clients, the employee would then work at the employer's facility. The employee requested that the employer check with the client to see if the pay rate could be increased. The employer agreed to do that. The employer did not get back to the employee after checking with the client. The employee refused the staff position because it could require her to travel on a day-to-day basis from any location between Green Bay and Oshkosh.

The commission concludes that the employee had good cause to refuse the part-time work since the understanding at all times with the employer was that she wanted full-time work. The second offer was never fully completed since the employee requested clarification and was not provided with an opportunity to accept or reject the final terms. Moreover, the work offered was at a rate $2 an hour less than the employee's most recent employment. The employee also had good cause to refuse the staff position because of the uncertainty of the assignments and the potential for significant travel requirements. The employee's refusals also fell within the six-week canvassing period found at Wis. Stat. § 108.04(8)(d).

Therefore, the employer laid-off the employee in week 6 of 2001 and the employee failed to accept offers of work with good cause within the meaning of Wis. Stat. § 108.04(8)(a), in week 7 of 2001.

DECISION

The appeal tribunal decision is modified to conform to the above findings, and as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. There is no resulting overpayment.

Dated and mailed November 27, 2001
reidli . urr : 135 : 1   SW 806  SW 844  SW 855

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer explains that employees are aware that when an assignment ends and before the next assignment commences there could be a brief period of unemployment but that both parties have an intent to maintain the employment relationship. The employer argues that this is a reality and not a fiction. The commission however examines the issue of a continuing employment relationship under the well established law regarding indefinite layoffs. As explained in Jones v. Seek Inc., UI Hearing No.99601034MW (LIRC July 6, 1999) the commission does not apply the department's temporary help policy which finds a continuing employment relationship simply because the employer promises some unspecified work in the coming week. Rather the issue of whether a continuing employment relationship exists following a layoff is resolved under established case law. See, A.O. Smith Corporation v. DILHLR, 88 Wis.2d 266 (1979).

Although the employer contends that it did everything required to continue the employment relationship as work was immediately offered, the commission respectfully disagrees. The employer's witness testified that the employer would do what it could do to find another position for the employee by February 16. Given the vagaries of this type of employment, a statement that "we would do what we could do" does not constitute assurance that work will resume in the not too distant future. Employees have a right to rely on actual assurance of work in the not too distant future when their last assignment ends. Because the commission is satisfied that the employer laid off the employee, it treated the subsequent assignments as offers of work under Wis. Stat. § 108.04(8)(a). The employee had good cause to refuse the offers. The employee also refused the offers within her six-week canvassing period found at Wis. Stat. § 108.04(8)(d). Consequently, the appeal tribunal decision, as modified in the decision, is affirmed.


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uploaded 2001/11/30