CLARA WESLEY, Employee

AGAPE CENTER OF ACADEMIC EXCELLENCE, Employer

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:

The employee has worked as a driver during the regular school year for the employer, a non-profit organization involved in providing K through 8th grade elementary education. She was last employed for the school year beginning in September of 2002 up until June 18, 2003, her last day of work when class attendance ceased.

The issue to be decided is whether the employee worked for an educational institution during the prior school year or regular term and whether the employee has reasonable assurance of performing similar work in the upcoming school year or term.

The employee had performed her services on a satisfactory basis in the past. She was never advised that her job was in jeopardy for any reason in the past and had no reason to believe that she would not be rehired in the fall of 2003 after her layoff at the end of the school year on June 18. Nonetheless, she was requested by her supervisor to meet on August 27, 2003 when she was notified of her termination because of complaints from parents for her failure to make pickups and reasons of disloyalty.

Wis. Stat. § 108.04(17)(d) provides that a school year employee of an educational institution who provides services for or on behalf of such an institution other than in an instructional, research, or principal administrative capacity, is ineligible for benefits based on such services for any week of unemployment which occurs during a period between two successive academic years or terms if the employee performed such services in the first such academic year or term and there is a reasonable assurance of performing such services in the second such academic year or term.

The employee in this case did not have reasonable assurance. The employee was never informed, at the end of the school year, that she would be rehired in the fall. In fact, the employee was laid off in August, prior to the start of the next term. The employee testified that she did not know in June if she would be rehired for the next school year. She indicated that the employer did not tell its workers that until a week before school starts in the fall.

"Reasonable assurance does not exist simply because the employer does not tell the employee that the employer will not be utilizing the employee's services in the upcoming school year. The burden is still on the employer to provide assurance that the employee will be performing similar services in the next academic year. It is not sufficient that the employer believes the employee will be performing services for it in the next school year. Such belief must be communicated to the employee." Gomez v. Wilmot Union High School, Hearing No. 99604551RC, (LIRC, October 28, 1999).

The commission therefore finds that the employee performed services in other than an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, but that, as of week 25 of 2003, the employee did not have reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(d).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2003, if she is otherwise qualified.

Dated and mailed April 16, 2004
weslecl . urr : 145 : 1   ET 481

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ. The commission does not disagree with any credibility determination made by the ALJ but reaches a different legal conclusion when applying the law to the facts.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/04/19