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


THOMAS J WITCZAK, Employe

LAKESHORE TECHNICAL COLLEGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97401841AP


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked about 13 years as an instructor/coordinator in the police science program for the employer, a technical college. The employer's academic year starts in late August and runs through the middle of May. The employer has two 16 weeks semesters. Faculty contracts are 36 weeks consisting of 32 weeks of instruction and 4 weeks of other assigned activity such as in-service dates, professional development days, record days and holidays.

On March 12, 1996, the employe signed a contract for the 1996-97 school year as an instructor/coordinator. The contract provided, "The terms of this contract will commence on July 1, 1996, and complete on June 30, 1997. The contract is for 42 weeks." The employe's salary was $57,887.00. The contract stated that a maximum of 70 percent of the workload would be classroom instruction. A special provision stated, "A 42-week contract that includes the regular (36) week 1996-97 school calendar with extended time arranged with your divisional dean." The additional 6 weeks was for service during the summer.

On March 14, 1997 the employe signed a contract as an instructor/coordinator. The contract provided, "The terms of this contract will commence on August 18, 1997 (week 34), and complete on May 19, 1998. The contract is for 36 weeks." The employe's pay was $49,989.00. The contract further provided that it was a standard 36 week 1997-98 school year contract with a maximum of 70 percent of the workload being assigned to instruction.

The employe, prior to the 1997-98 school year had worked 42 weeks for the employer. For budgetary reasons, the employer reduced the length of the contracts of its instructors. Other instructors lost as little as one week, but the employe lost the full 6 weeks of employment beyond the standard school year. Commensurate with the reduction in wage and weeks of employment, the employe's workload was decreased with the elimination of some duties he had in the past. However, his basic position was still as an instructor/coordinator in the police science area.

The issue to be decided is whether the employe was a school year employe of an educational institution who performed instructional services during the 1996-97 school year and had reasonable assurance that he would perform such services for an educational institution in the 1997-98 school year.

Wis. Stat. § 108.02(22m), provides as follows:

"`School year employe' means an employe of an educational institution or an educational service agency, or an employe of a government unit or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require the performance of services on a year-round basis."

Wis. Stat. § 108.04(17)(a), provides as follows:

"A school year employe of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

1. During the period between two successive academic years or terms, if the school year employe performed such services for an educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational institution in the second such year or term. . ."

The first issue is whether the employe is a school year employe. While the 1996-97 contract states that it commences on July 1, 1996 and is completed on June 30, 1997, it does not require the performance of services on a year-round basis. The performance of services is limited to 42 weeks. The employe contracted to provide services for 36 weeks in the academic year and 6 weeks in the summer. The employe was not expected to, nor did he contract to, work 52 weeks out of the year for the employer. The contract did not "require" the performance of services on a year-round basis. Having determined that the employe was a school year employe, the next question is whether he had reasonable assurance of performing services in 1997-98.

Pursuant to Wis. Stat. § 108.04(17)(a), an individual who works for an educational institution and has reasonable assurance of performing similar work in the next academic year is ineligible for benefits. "Reasonable assurance" means a written, verbal or implied agreement that the employe will perform services in the same capacity during the ensuing academic year. UC Benefits Manual, Vol. 3. Ch. VII, Sec. B, Nov. 1991, Page 15.

An educational employe will not be considered to have reasonable assurance unless the terms and conditions of the employment for the following year are reasonably similar to those of his or her employment in the preceding year. Leissring v. DILHR, 115 Wis. 2d 475, 489, 340 N.W.2d 533 (1983). Employment will be considered "reasonably similar" if, among other things, the number of hours per week worked and gross weekly wage earned amount to more than 80% of the number of hours per week worked and gross weekly wage earned in the preceding year, and if the work involves substantially the same skill level and knowledge as the employment in the academic year which preceded the week of unemployment. See Wis. Admin. Code § DWD 132.04(2).

The employe is working at the same skill and knowledge level as he has in the past. While the "amount" of work may have decreased, the work he is doing is the same, in terms of skill level and knowledge required, as he had done in the past. The question is whether he meets the 80 percent standard set forth in Wis. Admin. Code § DWD 132.04(2)(a) and (b). The 1996-97 contract was for 42 weeks at a salary of $57,887.00. That equals a weekly wage of $1,378.26. Based on a 40-hour work week, the employe would be working a total of 1,680 hours.

For the 1997-98 school year the employe would be working 36 weeks at a salary of $49,989.00. This equals a weekly salary of $1,388.58. Based on a 40-hour week at 36 weeks the employe would be working 1,440 hours. The employe's gross weekly wage in the 1997-98 school year exceeds his gross weekly wage in the 1996-97 school year and therefore meets the 80% standard. The employe's hours of work for 1997-98 are over 80% of his 1996-97 hours. Therefore, the employe has reasonable assurance of performing services for the employer in the 1997-98 school year.

The commission therefore find that the employe is a school year employe who performed services in an instructional capacity for an educational institution in the 1996-97 school year or term, and as of week 25 of 1997, had reasonable assurance of performing such services in the 1997-98 school year or term, within the meaning of Wis. Stat. § 108.04(17)(a).

The commission further finds that the employe was paid benefits in the amount of $1796.00 for weeks 27 through 33 of 1997, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as 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, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts.

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

DECISION

The decision of the administrative law judge is reversed. Accordingly, during weeks 25 through 33 of 1997, the employe is ineligible for benefits based upon any wages paid for work performed for the employer. He is required to repay the sum of $1796.00 to the Unemployment Reserve Fund.

Dated and mailed: March 19, 1998
witczth.urr : 132 : 1  ET 481

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility. The commission's reversal is based on reaching a different legal conclusion when applying the law to the facts.

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

cc:
ATTORNEY DENNIS W RADER
GODFREY & KAHN SC


Appealed to Circuit Court. Affirmed October 20, 1998. [Court Decision Summary]

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