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

MATTHEW  B  JONES, Employee

ADECCO NORTH AMERICA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02008397JV


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

On November 4, 2002, the employer, a temporary-help agency, offered the employee work as a warehouse worker. The opportunity was for 16 hours of work over two days, on November 6 and 7, 2002. The hourly wage offered was $8.00. On or about November 4 (week 45), the employee declined the offer. According to the employer's records, the reason for the refusal was because the employee was busy.

The work offered would have required the employee to commute 45 minutes one way.

The issue to be decided is whether the employee failed to accept an offer of work, and if so, whether he had good cause for failing to accept the offer.

In this case, the employee failed to appear at the hearing, and as such, gave no reason for refusing the offered work.

Wis. Stat. § 108.04(7)(e) of the statutes states that the voluntary quit disqualification of 108.04(7)(a) does not apply if the employee accepted work he or she could have refused with good cause under 108.04(8) and terminated such work with the same good cause and within the first ten weeks after starting the work, or if the employee accepted work he or she could have refused under 108.04(9) and terminated such work within the first ten weeks after starting the work. The first half of paragraph (e) states that the employee must quit the work with the same good cause he or she could have refused it under 108.04(8); there is no such limitation with regard to the latter portion of paragraph (e), a quit of work an employee could have refused under 108.04(9).  Section 108.04(9) likewise contains no language suggesting that a claimant must raise labor standards as a reason for quitting or refusing work. The Department of Labor, finally, has also expressly indicated that the labor standards are mandatory, minimum standards and, as such, are applicable whether or not a claimant raises them. See January 6, 1947 Program Letter No. 130 at 2. For these reasons, when a worker quits a job that is substantially less favorable to the worker than that prevailing for similar work in the employee's labor market, the employee does not need to raise labor standards as a reason for quitting. However, in this case, the ALJ found that the employee had good cause for quitting because the travel distance exceeded that which workers would customarily travel given the salary offered. Commuting distance is not considered a labor standard and as such the employee must establish the reason for quitting before the commission can determine whether the reason for quitting gives rise to good cause attributable to the employer. See Adams v. St. Croix Valley Temp. Services, (LIRC, March 27, 1998); Audra R. Thompson v. Cornwell Personnel Associates Ltd. (LIRC, August 21, 2003). The employee has the same burden to establish that failure to accept an offer of work was with good cause.

The employer contended that the employee did not have good cause for failing to accept the offer of work. The commission agrees. The employee did not appear at the hearing and establish why he refused the offered work. As such, the commission cannot conclude that the employee quit his work with good cause attributable to the employer or for any other reason that would allow immediate benefit payment.

The commission therefore finds that in week 45 of 2002, the employee failed, without good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a), and that the wages, hours (including arrangement and number), or other conditions of that work were not substantially less favorable to the employee than those prevailing for similar work in the labor market, within the meaning of Wis. Stat. § 108.04(9)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 of 2002, and until four weeks have elapsed since the end of the week of the failure and the employee has earned wages in covered employment performed after the week of the failure equaling at least four times the employee's weekly benefit rate which would have been paid had the failure not occurred. There is no overpayment as the result of this decision.

Dated and mailed September 18, 2003
jonesma . urr : 145 : 1  SW 800

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission did not reverse the ALJ's decision as the result of any differing assessment of witness credibility or demeanor. Rather, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


NOTE: In the employer's petition, the employer's representative states that the employer's account was involved in a reorganization. The representative's records indicate that the proper account number is 019151. The department issued the initial determination to the account number reported by the employer. The Bureau of Tax and Accounting is aware of the employer's assertion that the number listed in this case is incorrect and has updated its records.

cc: 
Adecco Employment Services (Janesville, Wisconsin)
Sandy Smith


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uploaded 2003/09/23