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

AGNES C TOWNSEND, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605548MW


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 two days, most recently as a laborer, for the employer, a temporary employment agency. Her last day of work was May 16, 2002 (week 20).

The initial issue is whether the employee quit, or was discharged from her employment.

On May 13, 2002, the employee submitted an application for employment to the employer. In that application she set forth her work history which included office and clerical work and indicated a preference for accounting or computer work. On that same date she executed a document which provided, in relevant part, that the employee understood the employment relationship would require her to accept work assignments at a variety of locations, doing a variety of jobs, with various rates of pay. The document further provided that, if the employee did not accept scheduled work assignments, the employer could assume that she voluntarily terminated her employment with the employer.

On May 15, 2002, the employee began performing work duties as a packager at a bakery. The position was full-time, paying $8.00 per hour. The evening of May 16, 2002, the employer telephoned the employee and informed her that her assignment was completed and that she should call the next day concerning further work. On May 17, 2002, the employee contacted the employer and was offered work packaging nuts, bolts, and screws at a manufacturing location. That position was full-time, paying $7.00 per hour, and was to start on May 20, 2002. The work assignment required her to wear steel-toed boots. The employee explained that she neither owned steel-toed boots, nor was willing to incur the expense to purchase them. The employer directed her to continue calling in for work assignments. She never again performed wage-earning services for the employer. The pay range for similar positions to that position offered the employee on May 17, 2002, is from $5.15 per hour to $19.53 per hour. The lowest quartile of that wage range is comprised of those positions paid at a rate of less than $7.09 per hour.

The employee did not intend to sever her employment with the employer, but merely declined one assignment with the employer. The reason for the refusal did not suggest that it was the employee's intent to terminate the relationship. The employee refused the assignment because she did not have steel-toed shoes necessary to perform the work. The position paid $7.00 per hour and the employee would have had to spend about $40.00 to purchase shoes. Further, the employer does not guarantee the length of an assignment. There was no guarantee the employee would ever be assigned to positions in the future that require steel-toed shoes. There was no assurance she would be provided enough work to cover the investment in the shoes. The employee had a valid reason for rejecting this position. The employer did not inform the employee that her conduct would be considered a quitting, and instead advised the employee to continue to call for additional work. The employee called on Monday but was told nothing was available. The employee has continued to call the employer. These are not the actions of an individual who intended to quit her employment.

The employer did have the employee sign a "contract of hire," which essentially states that the employee agrees to accept any job, any time, at any rate of pay as long it is at least minimum wage, at any duties and at a variety of locations. However, the commission has repeatedly stated that such provisions are too vague to constitute acceptance of any particular job assigned in the future. See Jackson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 97607140MW (LIRC Feb. 20, 1998); Koepke v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 98606001MW (LIRC Nov. 20, 1998); Johnson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 02601143 (LIRC June 27, 2002).

The commission finds that in week 20 of 2002, the employee was not discharged by the employer within the meaning of Wis. Stat. § 108.04(5), and did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7)(a).

Under Wis. Stat. § 108.04(1)(a), an employee's eligibility for benefits shall be reduced for any week in which the employee is with due notice called on by her employing unit to report for work available and is unavailable for or unable to perform such work. The "due notice" provision does not contain a "good cause" provision for failing to perform available work. The commission finds that in week 20 of 2002 the employee was called on by her current employing unit to perform work available in that week and was unavailable for such work, within the meaning of Wis. Stat. § 108.04(1)(a).

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is reversed. This matter is remanded to the department to determine the wages the employee could have earned had she performed available work and her resulting eligibility for benefits consistent with the above findings.

Dated and mailed February 27, 2003
townsag . urr : 132 : 1  MC 626  VL 1025 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility or demeanor. The ALJ indicated at the credibility conference that he did not believe that the employer informed the employee that refusing the offer of work would constitute a quitting. This is a credibility determination contrary to the ALJ's finding in his decision, but one with which the commission agrees. Further, stating that the employer considered the employee's conduct a quitting, does not make it so. The ALJ further indicated that the employee believed the employer would offer her additional work. The employer's comment that the employee should maintain contact with the employer to be assigned other work is consistent with the continuation of an employment relationship.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/03/10