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

EDWARD R VANDERHOOF, Employee

PERSONNEL CONNECTION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03403468AP


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 as a machine operator for about eighteen weeks for the employer, a temporary staffing agency. The employer had an agreement with its clients that the employer's workers could not be hired by the client for the first 90 days of employment without paying an additional fee to the employer. On or about August 22, 2003 (week 34), the employee was ordered by an unidentified client worker to sign a job application with the client. He was told that he had until 5:00 p.m. to sign the document. The employee signed the document knowing that it was an application for employment. He thought it was a requirement of his continued employment. The employer's vice-president subsequently contacted the employee to determine why he had reported no work for the employer for payroll purposes and was informed at that time that he was an employee of the client. The employee's job, rate of pay, hours of work, and other conditions of employment remained the same when he became an employee of the client.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employer contended that the employee quit his job when he was hired by the employee's client. The commission disagrees. "The commission has previously dealt with situations such as this where a temporary agency has an agreement with a client that allows the client to hire the employee after a designated period of time. The employer must establish both that the employer had additional work available that the employee could have performed with another client and that the employee was aware that she could decline to accept employment with the client and continue such work with the employer." Parish v. Adecco Employment Services, Inc., UI Dec. Hearing No. 99003656BO (LIRC Feb. 28, 2000). In this case, the employer had work available for the employee if he refused to accept the position offered by the client. However, the employee was never told that he had the option to continue working with the employer if he refused the position with the client. Since he was not aware that he could continue working for the employer, his completing paperwork for the client, as instructed by the client, did not indicate an intention to quit.

The commission therefore finds that in week 34 of 2003, the employee did not voluntarily terminate work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 34 of 2003, the employee was discharged by the employing unit, within the meaning of Wis. Stat. § 108.04(5), and that this discharge was not for misconduct connected with his work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 34 of 2003, if otherwise qualified.

Dated and mailed April 6, 2004
vandeed . urr : 145 : 2  VL 1007  VL 1025 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor because the commission did not reverse the ALJ because of a differing assessment of witness credibility. It was not disputed by either party that the employee had never been told that he had the option of continuing his employment with the employer if he refused to fill out the job application with the client. As such, the commission reversed the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


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