KATHLEEN A ZENIL, Employee
SEEK INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
In the fourth sentence of the second paragraph under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW, delete "June 20" and insert therefor "August 20."
The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 34 of 2002, if otherwise qualified.
Dated and mailed April 10, 2003
zenilka . umd : 132 : 1 SW 800 SW 815 SW 844
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
/s/ James T. Flynn, Commissioner
The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employer discharged the employee. That decision further found that the employee subsequently refused an offer of suitable work with good cause.
The first issue is whether the employer's offer of work to the employee on August 21, to begin on August 22, constituted an offer of new work or a rejection by the employee of ongoing work. The employee was laid off on August 9, 2002. While the employer indicated at that time that it would provide the employee with work within seven days, it failed to do so. The commission stated in Jones v. Seek Inc., UI Dec. Hearing No. 99601034MW (LIRC July 6, 1999), that it does not apply the department's temporary help policy which finds a continuing employment relationship simply because the employer promises some unspecified work in the coming week. The commission reasoned that such department policies are not entitled to the full force and effect of law which a formally promulgated rule is entitled to. Instead, the issue of whether a continuing employment relationship exists following a layoff is resolved under established case law. As a general rule, a worker who is laid off on an indefinite basis no longer has an employment relationship with the employer. A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 266, 276 N.W.2d 279 (1979). However, when there is credible evidence that at the time of layoff there exists an assurance, express or clearly implied by circumstances, that work will be resumed at an ascertainable time in the not too distant future, the employment relationship continues. Id. at 267. The commission stated that the emphasis should be on the credibility of the assertion that the temporary help employer actually had a foreseeable reassignment for the laid-off employee, as well as on the employee's availability and willingness to accept such reassignment, rather than on the number of days the employee would have had to have waited for such reassignment.
In this case, the employee had been laid off on August 9 and although the employer believed it would be able to provide her work in seven days, it failed to do so. The employer then sought to extend the date in which it would provide the employee work. The record does not contain evidence to support a finding that the employer had a basis for believing that it would have work for the employee at an ascertainable time in the near future. For these reasons, the commission agrees with the ALJ that the employment relationship ended prior to the offer of work at issue.
The commission further agrees with the ALJ that the employee had good cause for refusing the employer's offer of work. Good cause must be determined in light of the facts and circumstances in each particular case as they apply to basic tenets of reason and good faith. The commission applies a "reasonable person" standard when determining whether an employee has established good cause for refusing an offer of work. See Moore v. Scaife Day Care LLC, UI Dec. Hearing No. 01601625MW (LIRC July 13, 2001).
As reflected in the appeal tribunal decision, the employee rejected the employer's offer because, although she could arrange for childcare for the first week of the job, she did not believe she could arrange for childcare to begin August 26, 2002. The employee's parents could take care of her child only during the first week. The employee did look into getting a list of day care centers but the list was not going to arrive for four days. The employee did not want to take the position only to have to quit the job the next week if she did not secure childcare. The employee also considered that finding childcare would be more difficult if she was working from 8:00 a.m. to 5:00 p.m. In fact, it eventually took her four to five days to find childcare. At the time of the hearing the employee had secured childcare. The commission finds that the employee acted reasonably under the circumstances.
A labor market analyst testified regarding the conditions of the employee's labor market. According to the labor market analyst, the employee's need for 5-days notice to begin a job would reduce her availability for work up to 15 percent. Therefore, the employee's need for five-days did not have a significant impact on her availability for work. She remained available for well over 50 percent of suitable jobs in her labor market as is required to be considered available for work. See Wis. Admin. Code § DWD 128.01(2)(a). Given that the employee's need for five-days notice was not a severe restriction on her availability for work, the commission finds that she had good cause for refusing the employer's offer of work.
The employer, as a temporary help business, needs to fill orders quickly and cannot be expected to give workers the kind of notice the employee needed. However, suitable work for the employee is not limited to that provided by temporary help employers. An employee may be able to immediately accept a position, but may need to delay starting work in the position for a week or so for a variety of personal reasons. Finally, as reflected in the labor market analyst's testimony, outside of the temporary help field, not many employers require that an employee be able to start work immediately.
For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.
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