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

LUANNE M KROHN, Employee

MADISON AREA TECHNICAL COLLEGE DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005816MD


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, the employee is eligible for benefits beginning in week 21 of 2003, if otherwise qualified.

Dated and mailed May 27, 2004
krohnlu . usd : 164 : 9    ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that the employee was continuously employed for 20 years and never filed a single unemployment claim for any summer break period during that time. The employer contends that the employee had implied reasonable assurance of similar work based upon past practice. The commission has considered this argument, but does not find it persuasive. While the commission agrees that a 20-year uninterrupted employment history will generally provide an employee with reasonable assurance, this assumes that the circumstances of the employment remain basically the same from one academic year or term to the next. The fact that the employee had never filed claims for UI during previous summers only serves to emphasize the unusual circumstances she faced during the summer at issue when, in contrast to prior years, the employee learned that a major funding source for her position had decided to end its contract with the employer, casting doubts on whether similar work would be available for her in the fall.

In its petition the employer cites to Ashleson v. LIRC, 216 Wis. 2d 23, 573 N.W.2d 554 (Ct. App 1997), for the proposition that budget uncertainties do not create a lack of reasonable assurance per se. The employer points out that in Ashleson, the Court of Appeals noted that a degree of uncertainty is either necessary or acceptable, as long as it is reasonable, and that employment offers are often based on school budgets that are rarely finalized, authorized or funded before such offers of reasonable assurance are provided. Id. at 37.   The commission recognizes that school funding can be uncertain and that "reasonable assurance" does not mean a guarantee. However, the question of when funding uncertainties become so extreme as to deny an employee reasonable assurance depends on the individual facts of each case. In Ashleson, the court noted that the plaintiffs worked for the Head Start program, and that there was no evidence that funding for the balance of the program year was in specific jeopardy, or that the funding expectations for the next program year were not the same as in the past. By contrast, in this case the funding for the 2003-2004 school year did appear to be in specific jeopardy and was not the same as in the past. The employee testified that she had two separate conversations with her liaison at the employer, who indicated that until the budget was finalized she was not able to tell the employee how many hours she would have in the upcoming school year. The commission believes that, under the unique set of facts in this case, there was a sufficient degree of funding uncertainty so as to cast doubts on whether the employee had reasonable assurances of similar work in the upcoming school year, notwithstanding her lengthy employment history with the employer.

In its petition the employer also makes an argument that the employee had reasonable assurance as of May 15, 2003, when the school semester ended, and that a finding of no reasonable assurance cannot be based on information she obtained after the spring semester had ended. However, while the employee may have believed she had reasonable assurance of similar work in May of 2003, she subsequently learned otherwise. When the employee initiated her benefit claim in July of 2003, she lacked reasonable assurance of similar work. Accordingly, the appeal tribunal decision is affirmed.

cc: Attorney Josh Johanningmeyer


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


uploaded 2004/05/28