FELISA A FONTANEZ, 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 for the employer, a temporary staffing service, for about six weeks, during which time she worked in a supervisory position at a plastics company, earning $11 an hour. This assignment was on first shift and lasted from October 29, 2001 until December 11, 2001.

The employee contacted the employer on the date her assignment ended and was told the employer would have something else for her within a week. On December 13, 2001, the employee was offered an assignment as a project helper at a different plastics company, at a pay rate of $8 an hour. The work was on first shift. The employee refused the assignment because the hours of work conflicted with her obligation to drive her children to school.

The question to decide is whether the employee quit or was discharged, and whether she is eligible for benefits as a result of the separation. The employee had the option of continuing to work for the employer by accepting the new assignment, and the commission finds that in this case her refusal to do so constitutes a voluntary quit.

As a general rule, employees who quit are ineligible for benefits until they requalify under Wis. Stat. § 108.04(7)(a). However, the statute contains a number of exceptions to this general rule. The exception that seems most likely to apply in this case is Wis. Stat. § 108.04(7)(e), which provides that the quit disqualification does not apply to an employee who accepted work which she could have refused because the wages, hours or other conditions of the work were substantially less favorable than those prevailing for similar work in the locality, and terminated such work within the first 10 weeks after starting the work. This exception was designed to encourage workers to try out nonprevailing work on an experimental basis by permitting them to accept work which could have been refused under Wis. Stat. § 108.04(9), without being made worse off for having done so.

However, in Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993) (hereinafter Linde), the court of appeals limited the circumstances in which the statutory exception contained in Wis. Stat. § 108.04(7)(e) could be applied to temporary help workers. In Linde, the court found that the exception in question applies only to the first assignment a temporary help worker receives upon starting "new work" with a temporary help employer, and that quitting a second or subsequent assignment is not covered under § 108.04(7)(e) unless that assignment constitutes "new work." Thus, when a worker accepts an assignment and continues in that position until it ends, no matter how short the duration of the assignment, Wis. Stat. § 108.04(7)(e) cannot be applied to subsequent assignments unless there is an intervening layoff or a change in the original contract of hire. While, as the commission originally noted in Leighton v. Cornwell Personnel Associates, Ltd. (LIRC, June 29, 1994), it does not agree with the court of appeals' interpretation of the statute as articulated in Linde, which has the effect of treating temporary help workers less favorably than other workers and opens the door to manipulation by employers, the commission is nonetheless constrained to follow that interpretation. In this case there was no intervening layoff or change in the original contract of hire, so the § 108.04(7)(e) exception does not apply, regardless of whether the subsequent assignment was nonprevailing.

The commission has also considered whether the employee's quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). The employee testified that she refused the assignment based upon the hours of work, which conflicted with her obligation to drive her children to school. However, the assignment was on first shift, consistent with her previous assignment, and the commission does not find that the hours of work provided the employee with good cause attributable to the employer for quitting.

The commission therefore finds that in week 50 of 2001, the employee terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and that her quitting was not for any reason constituting an exception to that section.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 50 of 2001, and until four weeks have elapsed since the end of the week of quitting, and she has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. Department records reflect that the employee has requalified for benefits as of week 15 of 2002. There is no overpayment as a result of this decision.

Dated and mailed October 1, 2002
fontafe . urr : 164 : 8 : SW 844 VL 1025 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is as a matter of law.

cc: Cornwell Staffing Services

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uploaded 2002/10/16