AUDRA R THOMPSON, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, 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.

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

Dated and mailed August 21, 2003
thompau . usd : 178 : 1   SW 800  SW 810.15

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In its petition for commission review, the employer argues that the employee quit her job, because it placed her on a definite seven-day leave. When it could not find a position in that time, it placed her on a second seven-day leave. As the ALJ points out in his decision, past commission precedent does not permit finding a continuing employment relationship based solely on a vague assertion by the employer that it will return the employee to work at some point in the future. This case in particular shows how meaningless the employer's "definite" seven day leave was since it was promptly extended when the employer still had no assignment. The ALJ correctly found that the employee was laid off when the employer had no work for her and could offer no definite assurance of new work for her in the near future. Therefore, the subsequent work assignment would constitute new work.

The remaining issue is whether the employee failed to accept the offer of new work with good cause. Pursuant to Wis. Stat. § 108.04(8)(a), an employee is eligible for benefits if she had good cause for failing to accept the suitable work and remains generally able and available for work.

The term "good cause" is not defined in the statutes and the Unemployment Insurance Act does not specify the criteria to be considered in determining what is and what is not good cause. 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. Fall, Inc. v. DILHR and Kleinvachter, Dane County Circuit Court Case No. 157-245, January 13, 1978 and Carl v. Herman's Landing and Industrial Commission, Dane County Circuit Court Case No. 122-245, October 17, 1967. Thus, when determining whether an employee has established good cause within the meaning of Wis. Stat. § 108.04 (8)(a), the commission applies a reasonable person standard to determine whether the employee established good cause for failing to accept suitable work.

The employee refused the job because it involved excessive travel time, which would keep her from her daughter too long. Based on the reasonable person standard, a four-hour round trip commute for $8.10 per hour is excessive. Labor market evidence is not necessary for determining personal good cause. Commute is not a term and condition of the work. It is unique to the employee and may in some instances offer good cause. If the commute had been shorter, labor market evidence may have been necessary to establish an average commute to evaluate whether the employee's complaints were reasonable. In this case however the commission can find per se that the commute is excessive.

As for the employee's general availability for work, it is clear from her testimony and her conduct in the other assignment that her child care concerns did not interfere with her being otherwise available for full time, first shift work. As such, she is able and available for work on the general labor market.

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uploaded 2003/09/02