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

CORY W PEED, Employee

SAINT ELIZABETH HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96402764AP


On September 13, 1996, the Department of Workforce Development issued an initial determination which held that the claimant failed to accept an offer of work, the wages of which were substantially less favorable than for similar work, under sec. 108.04 (9), Stats. The employer timely requested a hearing on the adverse initial determination, and hearing was held on November 7, 1996 in Appleton, Wisconsin before a department administrative law judge. On November 8, 1996, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for 8-1/2 months as a full-time registered physical therapist for the employer, a healthcare business. He earned $18.59 an hour and specialized in outpatient treatment. His last day of work was August 3, 1996 (week 31) when he was laid off.

After the employe's layoff the employer sent him a letter offering him work. That letter was mailed on August 22, 1996 (week 34). That letter offered the employe the opportunity to return to his position as a physical therapist for the employer's business. The employe would return to work as a physical therapist in the employer's inpatient unit and his rate of pay would be the same as he had received previously. That offer of work directed the employe to contact the employer within three days of receiving the letter. Although the employe received the letter on August 25, 1996 (week 35), the employe did not contact the employer until September 5, 1996 (week 36). At that time, he left a message for the employer that he was not interested in returning to work for it. The employe refused the offer of work because he did not wish to work as an inpatient physical therapist for the employer. In particular, he preferred the outpatient work because it involved longer term and more detailed treatment plans. On September 4, 1996, the employe interviewed for a physical therapy position with another business. He was hired on September 6, 1996 for that work and actually began working as a physical therapist specializing in sports medicine.

In the employe's labor market, similar work to that which the employe performed for the employer has a pay range of $17.00 to $25.00 an hour. At least 75 percent of similar workers earn $20.41 an hour or more. The issue in this case is whether the employe had good cause for refusing the employer's late August offer of work. The commission concludes that he did, and so reverses the appeal tribunal decision.

"Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

(b) If the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality."

Sec. 108.04(9)(b), Stats. The purpose of this so-called "labor standards" provision is "to prevent the Unemployment Compensation program from exerting downward pressure on wage rates and working conditions." Continents Travel Agency v. LIRC, Case No. 88-CV5764 (Dane Cty. Cir. Ct. 4-27-89).

"Substantially less favorable" wages for an inpatient physical therapist are wages below $20.41 per hour. The employer's offer to the employe was almost two dollars per hour below that. The commission therefore finds that the employe had good cause to refuse the offer of work, pursuant to sec. 108.04(9)(b), Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed January 13, 1997
peedcor . urr : 105 : 8    SW 844  SW 875.27 

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversing an appeal tribunal decision, and credibility was a factor in the administrative law judge's decision-making. The administrative law judge in this case did not so indicate and, indeed, the commission's findings of fact are virtually identical to those of the administrative law judge. The commission's difference with the administrative law judge is in the legal conclusion those facts require. The administrative law judge reasoned that the employe's newness to the field justified the lower wage the employer offered him. The commission believes that wages for people relatively new to a field are already taken into account by the wage range for that field itself.


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