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


MARY A ANDREWS, Employe

P A STAFFING SER INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96607431MW


On October 18, 1996 the Department of Workforce Development (department) issued an initial determination finding that the employe was with due notice, called on by the current employing unit to perform work actually available in week 39 of 1996 but was unavailable for such work in that week. The employe timely appealed and a hearing was held before an administrative law judge. On December 12, 1996 the administrative law judge issued his appeal tribunal decision reversing the department's initial determination, finding that the employe was not called upon by the current employing unit to report for work actually available in week 39 of 1996, within the meaning of section 108.04 (1)(a), Stats. The department timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately one month in an assignment provided by the employer, a temporary help agency. The employe's first day of work was Tuesday, September 24, 1996 (week 39), and her last day of work on this assignment was October 24, 1996.

After being hired by the employer, the employe explained that she had already spoken to someone at the client's office (who turned out to be her daughter) regarding her assignment. The employer testified that although it did not know the specifics regarding the number of hours available, the employer believed it was for full-time work. The employe admitted at the hearing that there were 32 hours of work available with the client for that week and that she only made herself available for 24 hours that week. However, on the employe's first day of work, she informed her supervisor at the client company that she did not work on Wednesdays and Fridays. The employe and the client worked out an arrangement in which she would work three ten hours days starting the following week. The employe completed an 8 hour day on Tuesday, Thursday and Friday. The employe testified that she knew she could have worked on Wednesday but she expressed her preference not to work then.

Section 108.04 (1)(a), Stats. provides, in part, that:

"(a) An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work."

Thus, the issue for review is whether the employe was with due notice called upon by her current employing unit, the temporary help agency, to perform all the work available at the client. The administrative law judge found that the employe was not called upon by her current employing unit (temporary help agency) to perform work actually available even though she had been called upon to do so by the employer's client company.

The department argues that the fact the employe made an arrangement with the client does not change the relationship between the employe and the employer or its offer of available work in week 39 of 1996. In support of its petition, the department cites Daniels v. Dynamic Temporary Services, (LIRC 12/10/93), a previous commission decision in which the employe was called upon by her current employing unit to perform work actually available despite the fact that the claimant had arranged other hours with her on-site supervisor at the client company. In Daniels, the commission held:

"However, while it may be true that the employe performed all the hours requested by the on-site supervisor, the fact remains that the employment relationship here is not between the employe and the client but between the employe and the employer, temporary help agency. Representatives for the temporary help agency testified that work was available, during the weeks in question, with this specific client and other clients. Thus, . . . work was available with her current employer."

Both the employer and the employe testified that full-time work was available beginning Tuesday, September 24 through the remainder of the week. The employe declined work actually available by the current employing unit, the temporary help agency, because she preferred not to work on Wednesdays.

The commission therefore finds that the employe was called upon by her current employing unit to report for work actually available in week 39 of 1996 for which she was unavailable, within the meaning of section 108.04 (1)(a), Stats.

The commission further finds that the employe was overpaid benefits in the amount of $40.00 for week 39 of 1996 to which she is not eligible and to which she is not entitled within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8)(a), Stats., the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats.

DECISION

The appeal tribunal decision is reversed. The employe was with due notice called on by the current employing unit to report for work actually available in week 39 of 1996, for which she was unavailable, within the meaning of section 108.04 (1)(a), Stats. The employe is required to repay the sum of $40.00 to the Unemployment Reserve Fund.

Dated and mailed: February 21, 1997
andrema.urr : 135 : 1   AA 110   VL 1025

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge since credibility was not an issue. Instead, the commission issues a reversal decision as a matter of law determining that the employment relationship is between the employe and the employer. Consequently, the employe was with due notice called on by the current employing unit, the temporary help agency to report for work actually available in week 39 of 1996 for which she was unavailable for.

cc:
GREGORY FRIGO DIRECTOR
BUREAU OF LEGAL AFFAIRS


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