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

CRYSTAL L MILLER, Employee

TOPTECHS TEMPORARIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608697MW


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 began working for the employer, a temporary employment agency, on August 3, 2001, as a certified nursing assistant. The employee performed four one-day assignments for the employer, the most recent ending on August 11, 2001 (week 32). Although the employee agreed to accept three more assignments, on August 12 and 27, and September 3, she subsequently cancelled them. The employer attempted to contact the employee on two occasions in September, but the employee was either uninterested or unavailable for work. She performed no further services for the employer.

The initial question to decide is whether the employee quit or was discharged.

The employee accepted assignments with the employer after the date of her last assignment, but later cancelled them, and thereafter indicated a lack of availability. The employee's actions in this regard were inconsistent with a continuing employment relationship, and the separation from employment is best viewed as a voluntary quit.

The next question is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

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 question to decide is whether the employee's quitting fell within any statutory exception permitting the immediate payment of benefits.

The appeal tribunal found that the employee had another full-time job when she accepted the work with the employer, which would have provided her with good cause for failing to accept the job in the first place. The appeal tribunal concluded that the employee's quitting was with the "same good cause," pursuant to Wis. Stat. § 108.04(7)(e). The commission disagrees. The employee testified that she worked thirty-two "plus" hours a week in her other employment. For purposes of the unemployment statute, the administrative code defines "full-time" work as work which is performed for thirty-five or more hours in a week. See Wis. Admin. Code § DWD 100.02(28). The employee's thirty-two "plus" hour a week position does not fit within that definition and is not considered full-time work for purposes of the statute. Where the employee had less than a full-time job, her other employment would not have provided her with good cause to refuse an offer of work from the employer and, therefore, could not provide her with the same good cause to quit.

Moreover, it has consistently been held that the quit, same good cause provision does not apply to temporary help employees unless there is "new work," and that subsequent assignments by the same employing unit without a break in the employment relationship are not considered "new work." See, Giovanini v. Cornwell Personnel Associates, Ltd. (LIRC, March 13, 2001), citing Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993). Thus, whether or not the employee would have had good cause to refuse the first assignment offered by the employer, her actions in quitting a subsequent assignment, even if for the same reason, are not covered by the exception articulated in Wis. Stat. § 108.04(7)(e).

The commission has considered whether any other statutory exception might apply to the employee's quitting, but concludes that her quitting falls outside of the enumerated exceptions. The employee testified that the employer kept offering her assignments in nursing homes, rather than the hospital assignments she had requested. However, it was not shown that the employer promised her only hospital assignments, and the employee's personal preference for a certain type of assignment did not provide her with good cause attributable to the employer for quitting, within the meaning of Wis. Stat. § 108.04(7)(b).

The commission therefore finds that in week 32 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 commission further finds that the employee was paid benefits in weeks 32 through 35 of 2001, in the amount of $301, and benefits in weeks 37 through 52 of 2001, and weeks 1 through 6 and 10 through 23 of 2002, in the amount of $8,895, for a total amount of $9,196, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

A secondary issue presented in this case is whether the overpayment of benefits to the employee was because of departmental error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of the overpayment.

"Departmental error" is 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, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10e). In this case, the first $8,895 of benefits were paid to the employee prior to the issuance of the disqualifying determination, and were not the result of a department error. The remaining $301 in benefits were paid to the employee because the appeal tribunal failed to apply the correct definition of "full-time work" and, further, failed to consider and apply controlling case law. The commission has held that an appeal tribunal's failure to apply Linde to cases involving separations after a series of temporary assignments constitutes a misapplication of the law. See, Giovanini v. Cornwell Personnel Associates, Ltd. (LIRC, March 13, 2001), Rieger v. Seek Inc. (LIRC, August 8, 2000), and Payne v. Cornwell Personnel Associates Ltd. (LIRC, October 15, 1998).

The commission, therefore, finds that waiver of benefit recovery is required for those benefits paid subsequent to the issuance of the appeal tribunal decision under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of a department error and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(d). The first $8,895 of the overpayment was generated prior to the appeal tribunal decision and was not the result of department error. Therefore, recovery of that portion of the overpayment is not waived.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 32 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 48 of 2002. The employee is required to repay the sum of $8,895 to the Unemployment Reserve Fund. She is not required to repay the additional $301 she received as a result of the appeal tribunal decision.

Dated and mailed April 17, 2003
millecr . urr : 164 : 1 VL 1025  VL 1034    BR 335.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, 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. Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


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