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

CHRIS M JANESKY, Employee

GREEN BAY PUBLIC SCHOOL DIST, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401451MN


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 has worked for about four years as a substitute teacher for the employer. Prior to week 13 of 2003, the calendar week ending March 29, 2003, the employer assigned the employee work 2 - 4 days per week. He did not work during week 13 of 2003 because of the employer's annual spring break. The employer did not assign the employee work during week 14 of 2003. After the spring break week, the employer assigned the employee work 2 to 4 days per week. The employee performed services for the employer under a contract that did not require the performance of services on a year-round basis.

The issue to be decided is whether the employee is disqualified for unemployment insurance benefits for week 13 of 2003 pursuant to Wis. Stat. § 108.04(17).

Wisconsin Statute § 108.04(17)(a) provides:

(17) EDUCATIONAL EMPLOYEES. (a) A school year employee 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 2 successive academic years or terms, if the school year employee 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 2nd such year or term: . . .

Wis. Stat. § 108.04(17)(g) further provides:

(g) A school year employee of an educational institution who performs services as described in par. (a) or (d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for an educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will provide the services described in par. (a) or (d) for an educational institution in the period immediately following the vacation period or holiday recess.

The employee did not perform services for the employer in week 14 of 2003. However, Wis. Stat. § 108.04(17)(g) does not call for a comparison between the "week" immediately before and "week" immediately following the vacation period or holiday recess, but the "period" immediately before and "period" immediately following the vacation period or holiday recess. The comparison is between the weeks in the semester or term prior to the vacation break and the weeks in the semester or term after the vacation break. This interpretation is in keeping with Wis. Admin. Code § DWD 132.04(b), which determines whether reasonable assurance exists during a vacation or holiday recess by looking at the average number of hours of work in the weeks before and weeks following the vacation period or holiday recess. By the same token, if the employee had worked in week 14 of 2003, reasonable assurance would not be established if in the weeks following the vacation recess or holiday period his number of hours per week were 80% or less of the average number of hours per week in the weeks prior to the vacation period or holiday recess.

The commission therefore finds that the employee performed services as a school year employee in an instructional capacity for an educational institution in the period immediately prior to a vacation period or holiday recess, and had reasonable assurance of performing such services in the period immediately following such vacation period or holiday recess, within the meaning of Wis. Stat. § 108.04(17)(g).

The commission disagrees with the ALJ's interpretation of Wis. Stat. § 108.04(17)(g) but finds that such interpretation did not constitute departmental error as defined in Wis. Stat. § 108.02(10)(e). The employee's benefit check for week 13 of 2003 in the amount of $118.00 was applied to the employee's forfeiture balance. Since the employee was not entitled to benefits for week 13 of 2003, $118.00 must be restored to the forfeiture balance.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits in week 13 of 2003. The amount restored to the forfeiture balance is $118.00.

Dated and mailed March 30, 2004
janesch . urr : 132 : 8 : ET 481

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee argues that he did not have an employment contract. However, the record indicates that there was a written agreement pursuant to which the employee performed services as a substitute teacher. Further, there is no requirement that the employee perform services pursuant to a written contract. The employer's actions in offering the employee work for remuneration in weeks and semesters prior to those at issue, and his acceptance of such work, constituted an implied contract. The employee formed an "employment contract" with the employer each time he accepted work with the employer.

Reasonable assurance is an assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income. A written contract "guaranteeing" employment may constitute "reasonable assurance," but a contract is not a prerequisite to the "reasonable assurance," which may be shown, alternatively, by an offer of employment or, in some instances, a well-established custom of continued employment. The employee's testimony established that based on his history of employment with the employer he was assured of work following the vacation period at issue. Further, he knew from past experience that he would likely not be called upon to perform services in the week following the vacation week.

cc: Attorney Dana J. Erlandsen


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