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


VICKIE J BUDD, Employe

A LIFE STYLE SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96400238AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 13 weeks as a temporary worker for the employer, a temporary help agency. Her last day of work for the employer was December 11, 1995 (week 50).

The employer informed the employe at the time of hire that after at least 8 weeks, if she was considered a good enough worker, the client might hire her. On December 12, 1995, the client informed her that she was being hired by the client. The employe knew that if she wanted to remain a temporary worker for the employer she could have done so by refusing to be hired by the client.

The initial issue to be decided is whether the employe voluntarily terminated her employment or was discharged. The second issue is whether the employe is eligible for benefits based on her separation from employment.

The ALJ found that the employe's change in status from a worker for the employer to a worker for the client was a payroll arrangement and a contract between the employer and the client. The ALJ found that the employe was not privy to that contract and reasoned that the employe did not voluntarily terminate her employment but rather maintained her employment within the terms of hire. The commission disagrees. The contract between the employer and the client simply allowed, but did not require, the client to hire a temporary worker after at least 8 weeks. At the time the employe was informed that the client wanted to hire her she had the choice of refusing the client's offer. The employer was willing to continue the employe's employment if she declined the client's offer. The change in employment status was ultimately the employe's decision.

In addition, the commission has recently held that a temporary worker who accepts work for a client, under an arrangement which allows the client to hire the employe after a designated period of time, and who later begins work for the client, has voluntary terminated her position with the employer. Kathleen Vanden Berg v. Trinity Resources Corp., LIRC decision 12/26/95. While the arrangement is between the employer and the client, the employe is not without options. Indeed, the employe acknowledged in her testimony that she could have continued working for the employer by turning down the offer of permanent work. The employe did deny, however, that she was made aware that she would be viewed as quitting her employment with the temporary help agency.

Under sec. 108.04(7)(a), Stats., an employe who voluntarily terminates employment is ineligible for benefits until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment after the week of quitting equal to four times the employe's weekly benefit rate. The requalification requirements set forth in sec. 108.04(7)(a), Stats., apply unless the reason for quitting falls within some statutory exception permitting immediate benefit payment, or permitting imposition of less stringent requalification requirements.

The employe voluntarily terminated her work to accept work which offered the opportunity for significantly longer term work. The employe's reason for quitting does not permit the immediate payment of benefits. However, under sec. 108.04(7)(L), Stats., the employe can requalify for benefits by earning four times her weekly benefit rate in subsequent employment. The employe's weekly benefit rte is $147.00. Accordingly, the employe is eligible for benefits as of the week she earns wages in her subsequent work equaling at least $588.00. Evidence adduced at the hearing did not establish that the employe earned the required wages as of the time she claimed benefits.

The commission therefore finds that in week 50 of 1995, the employe voluntarily terminated her work to accept work offering the opportunity for significantly longer term work, within the meaning of sec. 108.04(7)(L), Stats., but that as of week 52 of 1995, she had not earned wages in that subsequent work equal to at least four times her weekly benefit rate.

The commission further finds that the employe was paid benefits in week 52 of 1995 in the amount of $147.00 for which she was not eligible and to which she was not entitled within the meaning of sec. 108.03(1), Stats., and pursuant to sec. 108.22(8)(a), Stats., she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under section 108.22(8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04(13)(f), Stats., the overpayment was not the result of a department error. See section 108.22(8)(c)2., Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 50 of 1995, and until the employe has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $147.00 to the Unemployment Reserve Fund. If the employer is subject to the contribution requirements of the Wisconsin unemployment compensation law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed: May 10, 1996
buddvi.urr : 132 : 6   VL 1007 VL 1025

/s/ Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The employe admitted that she could have continued working for the employer. The commission disagrees with the legal conclusion reached by the administrative law judge.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government. Contact the Division of Unemployment Insurance, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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