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

JON P AUMANN, Employee

EAU CLAIRE AREA SCHOOL DIST, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03201414EC


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, during weeks 24 through 35 of 2003, the employee is ineligible for benefits based upon any wages paid for work performed for the employer.

Dated and mailed January 9, 2004
aumanjo . usd : 132 : 8   ET 481

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee states in his petition that the ALJ failed to recognize that he was not under contract with the employer and the employer was not obligated to offer him work. The employee's argument was rejected in Smith and Gathing v. LIRC and Madison Metropolitan School District and DILHR, Case Nos. 95-CV-0798 & 95-CV- 0799, respectively (Wis. Circuit Court Dane County, June 27, 1996). The plaintiffs worked as substitute teachers for a school district. At the end of the school year, the district notified them of its intention to maintain their names on the substitute list for the upcoming school year. The plaintiffs argued that they were not "school year employees" because they did not perform services under an employment contract, but were simply placed on a list of substitute teachers, enrollment on which did not guarantee a single day of work or imply any obligation to perform services for the district. The commission rejected such argument finding that the employment contract was only relevant in ascertaining the period of time during the previous academic year in which services were required to be performed. The court agreed. The court noted that such interpretation comported with Barnett v. LIRC, 131 Wis.2d 416 (Ct. App. 1986). The court stated:

In Barnett, the court of appeals reviewed whether a school district was a substitute teacher's "current employing unit" under § 108.04(1)(a), Stats. The court held that the district was Barnett's current employing unit only on the days she actually substitute taught. Logically, on those days in which a substitute teacher performs services and received compensation for those services, he or she is working under an employment contract and the district is his or her current employing unit.

The court further found an implied in fact contract existed in the previous year based on the actions of the school district in offering work for remuneration and the plaintiffs' acceptance of such work. In this case, the commission finds that the employee did work under an implied contract in fact in the previous year.

Reasonable assurance includes a written, verbal or implied agreement that the employee will perform services in the same capacity during the upcoming year. The employer did not and need not guarantee the employee employment in the future. The employer notified the employee of its intent to utilize his services in the upcoming school year. The evidence established that the employee's opportunity to perform services would actually be greater than it had been in the previous school year as the employer changed its method of calling substitutes to contacting certified teachers, such as the employee, prior to contacting non-certified teachers. The commission recognizes that the employer stated that it does not "assure" anyone that they are going to substitute teach. However, the employer further testified that it anticipated using the employee's services to the same extent as it had done in prior years. As the employer stated "assurances are based on the fact that we know we will have absences during the school year." The employee's opportunity to perform services from the substitute list was as great as it had been in the previous school year.


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