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

ELIZABETH A SUPRENAND, Employee

MORAINE PARK VOCATIONAL TECHNICAL & ADULT EDUCATION DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02000535FL


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits in week 48 of 2001, if otherwise qualified.

Dated and mailed September 19, 2002
superel . usd : 132 :  ET 481

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was not a school year employee as defined in Wis. Stat. § 108.02(22m). The employer asserts that it is uncontested that the employee's contract does not require the performance of services on a year-round basis. The commission disagrees. The employee maintained that she was required to perform services on a year-round basis.

The employer appears to be arguing that because the employee's services were only required for 47 weeks, those services were not required on a year-round basis. The commission does not interpret Wis. Stat. § 108.02(22m) to require that an employee be under contract to work 52 weeks out of the year in order to be excepted from the definition of school year employee. Here, the employee was scheduled to work 47 out of 52 weeks in a year. The employee was scheduled to perform her work between July of one year and June the following year. The memorandum the employer sent the employee notifying her of the change to the position at issue states, "Your work schedule during the school year is 7:30 a.m. - 3:30 p.m. Tuesday through Friday, for a total of 30 hours per week. During the summer, the hours are 8:00 a.m. - 4:00 p.m. Tuesday through Thursday, for a total of 22.5 hours per week." Exhibit 4. Thus, the position description supports a finding that the employee's services were required on a year-round basis.

The employer is correct that the purpose of the "reasonable assurance" provision is to prevent subsidized summer vacations. However, the employee's unemployment is not tied to any customary vacation or between terms period. The employee can be called upon to work throughout the year. The employee is not restricted to working during the school year, and is not off work because it is the employer's summer, holiday or other customary break period. (1)

cc: 
Attorney John A. St. Peter
Mary Pitassi, WEAC


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Footnotes:

(1)( Back ) The employer argues that it offers instruction year round and therefore cannot be compared to a traditional K-12 educational institution. Assuming the employer operates year round does not answer the question of whether this employee was required to work year round, although an inference may arise that an institution that operates year round is more likely to need employees who can be called upon to work year round. Further, accepting the contention that the employer operates year round, it is difficult to understand how any of the employer's workers would be found ineligible for benefits under Wis. Stat. § 108.04(17). A school year employee is ineligible for a week that occurs during an established and customary vacation period or holiday recess, or between the employer's academic years or terms. The focus is on whether the worker is unemployed in a week that school is not in session or during a non-instructional period of operation. Thus, in Boldt and Van Eperen v. LIRC and Fox Valley Vocational, Technical and Adult Education District, No. 91-CV-0415 (Wis. Cir. Ct. Outagamie County, Dec. 13, 1991), it was the employees who argued that the employer operated year round and that, as year-round employees, they should be eligible for benefits during what would be a traditional educational institution's "summer break." The court affirmed the commission's findings that the employer did not operate year round and that the reasonable assurance provisions did not except year-round workers. Boldt was decided before the reasonable assurance provisions were amended to except employees who work year round.

 


uploaded 2002/09/30