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

JERRY  D  TURNBULL, Employee

ADECCO USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03003316MD


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 almost two years in a series of assignments for the employer, a temporary help agency or staffing service.

The issue is whether the separation, which occurred on or around March 14, 2003 (week 11) was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee's last assignment for the employer was at PolyOne Corporation. This was understood by the employee to be a "temp to hire" assignment, i.e., that, if the employee performed satisfactorily for a period of months, PolyOne would offer him permanent employment.

In March of 2003, as the employee's temporary assignment was nearing an end, PolyOne conducted a review of the employee's suitability for permanent employment. It discovered that he had misrepresented his criminal history on his job application. As a result, PolyOne decided not to hire him as a permanent employee, and, on March 14, 2003, notified him that his assignment with them had ended. PolyOne provided this notification to the employer on March 17, 2003.

On or before March 24, 2003, the employee stopped in to the employer's offices to retrieve certain personal belongings which he had left at PolyOne and which PolyOne had forwarded to the employer. The employee did not ask the employer about work during this visit or indicate that he was available for work. The employee had no other contact with the employer after March 14, 2003, until April 18, 2003, when he stopped in to advise the employer that he was available for work.

The employee had failed on previous occasions to contact the employer after the end of an assignment until he came in to the employer's offices a week or more later to announce that he was available for work. On these occasions, the employer had waited until this contact from the employee to consider him available for work and to offer him work.

The employee began a claim for benefits on March 31, 2003. He was interviewed by a department investigator on April 15, 2003. In his UCB-157 (claimant statement to department investigator-hearing exhibit #4), the employee stated that he had not asked the employer about any jobs after his assignment with PolyOne ended because he "was looking into a job at Pepsi."

The employee testified that he had not contacted the employer after his assignment at PolyOne had ended because the employer, when past assignments had ended, "had always called me with new assignments."

In a determination dated and mailed on April 16, 2003, which the employee testified he received on April 17 or 18, the department denied benefits, reasoning that the employee had constructively quit his employment when he stopped contacting his employer for additional work. When he received this determination, the employee, on April 18, 2003, stopped in to advise the employer that he was now available for work.

The employee admitted that he had received a copy of the employer's handbook, but had "never read the whole handbook." The employer's handbook (exhibit #3) provides on page 3 that employees who are not on assignment are required to notify the employer once a week as to their availability for work; on page 8 that employees are to contact the employer if their assignment is ending, and if they are available for work; and on page 23 that employees are to notify their representative at the employer within 48 hours of the end of an assignment and failure to do so may result in an involuntary quit.

The record does not support a conclusion that it was the consistent practice for the employer to contact the employee after the end of an assignment and that the employee did not contact the employer after March 14, 2003, as a result. Instead, the record shows that, in the past, the employee had contacted the employer when he was ready for another assignment. The record also shows that the reason the employee did not contact the employer upon the end of his PolyOne assignment was not that he was waiting for the employer to contact him but instead that he thought he had another job lined up with a different employer. Finally, the record establishes that the employer's handbook, which it had provided to the employee, required the employee to contact the employer after the end of an assignment.

It was the employee's practice as well as his responsibility to contact the employer after his assignment ended and his failure to do so renders the separation a quit. See, e.g., Luling v. Adecco North America LLC, UI Hearing No. 01604568WK (LIRC Sept. 5, 2001), aff'd Luling v. Adecco and LIRC, Case No. 01 CV 2341 (Waukesha Co. Cir. Ct. May 10, 2002)(employee had reason to be aware, after her assignment ended because of improper use of the client's computer system, that she needed to contact the employer for further assignments, and her failure to do so constituted a quit).

The commission therefore concludes that, in week 11 of 2003, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $728 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2003 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $728 to the Unemployment Reserve Fund.

Dated and mailed December 12, 2003
turnbje . urr : 115 : 1  VL 1025

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conducted a credibility conference with the administrative law judge (ALJ) before reversing his decision The ALJ indicated in this conference that, after reviewing the hearing synopsis, he concluded that he had misunderstood the evidence of record, and that he could not recall whether he found the employee credible after observing his testimony at hearing. The ALJ concluded in his decision that the employee did not contact the employer for another assignment because that had not been the practice followed in the past. However, the employer's record of contacts with the employee (exhibit #1) does not bear this out. Furthermore, the employee admits that his statement to the adjudicator was accurate, and this statement (exhibit #4) indicates that he did not contact the employer for another assignment because he was looking into a job with another employer.

cc: 
Adecco (Madison, Wisconsin)
Sandy Smith


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uploaded 2003/12/22