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

THOMAS C CAUSEY JR, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610773MW


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 as a long-term substitute physical education teacher for the employer for 2.5 years. He had been a licensed (lifetime license), full-time teacher for the employer in the mid-70's, but had moved to California in 1979, and his lifetime license had become inactive. The employee was aware that he could get his lifetime license reactivated if he earned 6 college credits, and was trying to find time in his schedule to earn these 6 credits. The employer was aware that the employee was not licensed when he worked for them as a substitute teacher. The employee was aware that he needed a license to teach, but there was no mandatory time period within which he was required to obtain it.

On August 21, the employee received notice from the employer that he had until August 30 to get his license (substitute license), and, without this license, he would not be allowed to work during the upcoming academic year. The employee went to the employer's offices to apply for the substitute license. The secretary there told him that he "would be all right to go to work." The employee told her that he didn't have the money to pay the $100 fee at that time, but she said he would be all right as long as he had started his paperwork before August 30, and he would be able to pay for his license when he got his first check.

The employee went to the substitute board on September 3 or 4, and the secretary there assigned him to a new long-term substitute teaching position. When the employee contacted this secretary for his assignment, she told him that she had received a form stating that he was ineligible to work because he didn't have his substitute license.

Wisconsin Statutes § 108.04(1)(f) states as follows:

If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06(1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded under this paragraph if the employee qualifies to establish a benefit year under s. 108.06(2)(a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements of 108.18 from which base period wages are excluded under this paragraph.

The employer did not appear at the hearing. There is a presumption of eligibility for UI benefits, and it is the employer's burden to rebut that presumption.

There is authority for concluding that Wis. Stat. § 108.04(1)(f) is not applicable to the fact situation here. In its decision in Buckeridge v. Milwaukee Public Schools, UI Hearing No. 79-A-60616MC (LIRC July 2, 1979), aff'd Milwaukee Board of School Directors v. DILHR and Byron Buckeridge, Case No. 496-044 (Milw. Co. Cir. Ct. Jan. 7, 1980), the commission held that a disqualification results pursuant to § 108.04(1)(f) only if there is a suspension, revocation, or failure to renew a license, and not when there is a failure to obtain a teaching license. In Moore v. Milwaukee Public Schools, UI Hearing No. 89-601947 (LIRC Oct. 3, 1989), the commission, citing Joint District No. 2, Lisbon-Pewaukee Schools v. DILHR and Moore, Case No. 148-394 (Dane Co. Cir. Ct., Aug. 9, 1976), concluded that the failure of an employee to obtain a license in the first instance is not analogous to a situation involving the loss of a license for purposes of application of § 108.04(1)(f). Here, the discontinuation of employment resulted not from the loss of a current license, but instead from the failure to acquire a license.

However, even if § 108.04(1)(f) were applicable, the record does not support a conclusion that the employee's failure to possess the requisite license was "due to the employee's fault" within the meaning of the statute. The employer did not appear at the hearing and, as a result, did not rebut the employee's showing that he did not complete the application process by paying the $100 fee because he had been led to believe by an agent of the employer that it wasn't necessary in order to continue his employment for the fall 2002 semester. As a result, the "fault" here is attributable to the employer, not the employee, by application of an equitable estoppel analysis, i.e., the employer is estopped from claiming that the employee did not properly complete the application process because he reasonably relied to his detriment on information provided by the employer.

In cases such as this where § 108.04(1)(f) is held not to apply, the commission has analyzed instead the issue of whether the record supports a conclusion that there was a constructive voluntary termination, i.e., a disqualifying quit. In Moore, supra, the commission concluded that a quit was not found where the employee made reasonable efforts to obtain his teaching license. Consistent with the above analysis, the commission concludes that is the correct conclusion here as well.

The commission concludes that the employee was discharged by the employer but there has been no allegation nor showing of misconduct and, as a result, the employee is eligible for benefits, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 9, 2003
causeth . urr : 115 : 1   AA 130

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission did not confer with the administrative law judge because its reversal of her decision rests not upon a different conclusion as to credibility, keeping in mind that the employee was the only witness to testify, but instead upon a different view as to the applicable law and as to what the evidence of record established.


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


uploaded 2003/05/16