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

RODNEY L PETERS, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605143MW


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 one and one-half years for various clients of the employer, a staffing agency. His last day of work was May 7, 2002 (week 19).

The employee completed an employment application on November 21, 2000. On this application he recorded that he did not have a valid driver's license, but that he would be transported to work via car. At that time the employee had a friend who was willing and able to transport him to and from work. Sometime after he began working for the employer he informed an office worker that his friend was no longer able to transport him to work, and that he subsequently required a job that was either accessible via public transportation, or one for which the employer provided transportation.

The employee began a long-term assignment on August 9, 2001, and worked in that assignment until May 7, 2002. The employee rode the bus to and from this assignment. During approximately two weeks per month the employee was able to work overtime, earning time and one-half his regular wages. His rate of pay was $9.65 per hour.

On May 7, 2002, the employee's on-site supervisor informed him that he would not be required to return to work the next day, as there was no more work available for him. At the end of his shift the employee reported to the employer's place of business to report the lack of work. The employer's representative informed him that she did not currently have any work available for him, but that she would try to find him a job as soon as possible.

As the employee was returning to his home on May 7, 2002, the employer's branch manager contacted him via his cellular phone to offer him a full-time position in Franklin that paid $8.00 per hour. The job would start at 6:00 a.m. The employee asked whether the job was accessible via public transportation, or whether the employer provided van service to the location. When the manager informed him that he would be required to provide his own transportation to the job site, the employee declined the position, as he would have no reliable method of transportation which would allow him to be in Franklin each morning at 6:00 a.m. This job site was not accessible via public transportation. The manager informed the employee that he would be quitting if he did not accept the position. The employee replied that he was not quitting, but that he simply would not be able to access the job site.

The employee contacted the employer on May 8, 2002, to ascertain whether any other positions were available. He was informed that nothing else was available.

The issue to be decided is the employee's eligibility for benefits in week 19 of 2002.

The employee stopped working for the employer on May 7, 2002, when the assignment ended. He immediately informed the employer he was available for work. The employer offered the employee a new position that the employee declined. The employee was unable to accept the position because he lacked transportation to the work site. The employee did continue to contact the employer for additional work. The employee did not, by his refusal of the May 7, 2002, assignment intend to terminate his employment. The employee did not act inconsistent with continuing his employment by declining a single assignment.

The commission finds that the employee was called on by his current employing unit to perform work available and did refuse that work. When an employee refuses work offered by a current employing unit, wages that could have been earned had the work been performed must be considered in determining the employee's benefit eligibility. The position at issue paid $8.00 per hour. The position was for 10 hours a day, Monday through Thursday. The employee therefore could have worked on May 8th and 9th, earning $160.00 in additional wages in that week.

The commission therefore finds that in week 19 of 2002, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that in week 19 of 2002 the employee was not discharged from his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 19 of 2002 the employee was called on by his current employing unit to report for work actually available, and was unable to perform or unavailable for such work within the meaning of Wis. Stat. § 108.04(1). The employee could have earned $160.00, in addition to wages of $154.40 previously reported, for total wages of $314.40. Based on his weekly benefit rate of $245.00, he was entitled to benefits of $54.00 in that week. The employee received benefits totaling $198.00 in that week. The commission therefore finds that in week 19 of 2002, the employee was paid benefits in the amount of $144.00 for which he was not eligible to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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)2.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, in week 19 of 2002, the employee is eligible for benefits in the amount of $54.00. He is required to repay the sum of $144.00 to the unemployment reserve fund. This matter is remanded to the department for further investigation into whether the employee was called on after week 19 of 2002, to perform work available based on the above work offer and for investigation of his eligibility based on offers of other work in week 20 of 2002, unless otherwise resolved

Dated and mailed December 4, 2002
peterro . umd : 132 : 1   AA 215   VL 1025

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission has modified the appeal tribunal decision in this matter to reflect that there was no separation from employment in week 19 of 2002. Not every refusal of a work assignment constitutes a voluntary termination on the part of the employee. The employee did not intend to sever his employment relationship with the employer, but merely declined one assignment because of its location. The nature of the relationship between a temporary help agency and an employee contemplates that assignments will be offered at a variety of locations. The employee's inability to accept one specific assignment at one particular location does not in and of itself reflect an intent on the part of the employee to voluntarily terminate his employment. Likewise, the fact that the employer could not immediately offer the employee another assignment, after the employee refused the first offer of ongoing work, did not translate into a discharge. Accordingly, the commission believes the case is more appropriately analyzed as a failure to perform available work under Wis. Stat. § 108.04(1). The commission remands this matter because the record does not reflect how long the assignment was to last. Further, it appears that other work was offered to the employee in week 20 of 2002. Exhibit 1.


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uploaded 2002/12/13