STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MARIA A BURRUS, Employe
MILWAUKEE PUBLIC SCHOOL, Employer
UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97605739MW
On July 5, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that the employe worked for an educational institution in other than an instructional, research or principal administrative capacity during a school year, but that she did not have reasonable assurance that in the next school year she would perform such services. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On October 3, 1997, the appeal tribunal issued a decision which affirmed the initial determination. The employer has filed a timely petition for commission review of the appeal tribunal decision.
Based on the applicable law, records and evidence in this case, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe has performed services as a paraprofessional for the employer, a school district since March of 1995. A paraprofessional is similar to a teacher's aide and is responsible for assisting a certified teacher in the classroom. The employe last worked for the employer in that capacity in the school year ending June 12, 1997 (week 24).
In June of 1997 the employe completed all of the requirements necessary to work as a certified teacher. At some time near the end of the 1996-1997 school year, she applied for a job as a certified teacher with the employer.
On June 23, 1997 (week 26), the employe received an offer of work as a paraprofessional for the upcoming school year, beginning on August 26, 1997 (week 35). On the same date she was also offered a full-time certified teacher position for the upcoming year. The employe accepted the latter offer on June 26, 1997.
The issue to decide is whether the employe worked for an educational institution during the 1996-1997 school year, and whether the employe had reasonable assurance of performing similar work in the 1997-1998 school year, within the meaning of Wis. Stat. § 108.04(17)(a).
In this case the employe received offers of work both as a paraprofessional and as a certified teacher. While the latter cannot be considered "similar work," in that it would not have involved substantially the same skill level and knowledge as the work performed by the employe in the previous school year, the same cannot be said for the paraprofessional position, which was essentially the same as the employe's most recent assignment with the employer. The employer's offer of a paraprofessional position provided the employe with reasonable assurance of similar work, within the meaning of the law.
In reaching this conclusion, the commission notes that the intent of the reasonable assurance provisions of the unemployment law is to prevent subsidized summer vacations for those teachers who are employed during one academic year and who are reasonably assured of resuming their employment the following year. See Leissring v. DILHR, 115 Wis. 2d at 475, 489, 340 N.W.2d 533 (1983). Where the employe was offered not one, but two, jobs for the upcoming school year, one of them the same as her most recent position and one essentially a promotion, granting her benefits over the summer months would be precisely the result that the law is seeking to prevent.
The commission, therefore, finds that the employe performed services in other than an instructional, research, or principal administrative capacity for an educational institution during the 1996-1997 school year and that, as of week 26 of 1997, she had reasonable assurance of performing such services again in the next school year within the meaning of Wis. Stat. § 108.04(17)(a).
The commission further finds that the employe was paid benefits in the amount of $1,566 for weeks 26 through 34 of 1997, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).
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 employe as provided in Wis. Stat. § 108.04(3)(f), the overpayment was also not the result of a departmental error.
DECISION
The appeal tribunal decision is modified as to the week of issue and, as modified, is reversed. Accordingly, the employe is ineligible for benefits for weeks 26 through 34 of 1997. The employe is required to repay the sum of $1,566 to the Unemployment Reserve Fund.
Dated and mailed November 12, 1997
burruma.urr : 164 : 5 ET 481
/s/ Pamela I. Anderson, Chairman
/s/ David B. Falstad, Commissioner
NOTE: The commission's reversal of the appeal tribunal decision is as a matter of law and does not involve an assessment of the credibility of the witnesses in this case. Consequently, no credibility conference was required under Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 195 N.W.2d 656 (1972).
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