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

JOE N. MAY, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03611995MW


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, if otherwise qualified.

Dated and mailed July 15, 2004
maynjoe . usd : 132 : 1   SW 844 VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee failed to accept an offer of suitable work with good cause. The employer argues that the employment relationship continued after November 17 because, in accordance with department policy, it assured the employee that it would find him work within the next seven days. Documentation of the call does not indicate that the employee was told he would be provided work in seven days. More importantly, however, the commission announced in Jones v. Seek Inc., UI Dec. Hearing No. 99601034 (LIRC July 6, 1999), that it would not follow the department's policy, which essentially continues the employment relationship between a temporary help agency and an employee for up to 14 days based on assurance from the agency that work will be provided. In rejecting such policy the commission stated:

First, the policies are designed to implement and interpret specific sections of Chapter 108 (notably Wis. Stat. § 108.04 (7)(a)), they are of general application, and when utilized they have the effect of law. Accordingly, before they could affect a decision of the commission or of an appeal tribunal, they would have to be successfully adopted as Wisconsin Administrative Rules rather than as policies. See Wis. Stat. § 227.10 (1) and Plumbing Apprenticeship Committee v. DILHR, 172 Wis. 2d 299, 321, 493 N.W.2d 744 (Court of Appeals 1992).

Second, the department's promulgation of these policies could lead to errors of fact. As promulgated, a department adjudicator might view them as having the effect of a presumption that any assurance by a temporary help employer of reassignment within seven days is credible. The facts and circumstances of each assurance of reassignment should be independently reviewed for credibility. Evidence of the number of suitable jobs the temporary help agency actually had available during the period in question, and the length of time the employe actually would have had to have waited before being offered one of those jobs would be of primary importance. Also of primary importance would be evidence of the employe's willingness and availability to accept a suitable reassignment.

Third, as previously detailed, the law has always provided that the employment relationship continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future. The emphasis should be on the credibility of the assertion that the temporary help employer actually had a foreseeable reassignment for the laid-off employe, as well as on the employe's availability and willingness to accept such reassignment, rather than on the number of days the employe would have had to have waited for such reassignment.

The commission has continued to follow its rationale in Jones v. Seek Inc. See, e.g., Smith v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 03608179MW (LIRC May 27, 2004); Zenil v. Seek Inc., UI Dec. Hearing No. 02403573AP (April 10, 2003); Reid v. Seek Inc., UI Dec. Hearing No. 01401251AP (LIRC Nov. 21, 2001); Wood v. Seek Inc., UI Dec. Hearing No. 00601552MW (LIRC May 26, 2000); and Sundelius v. Aerotek Inc., UI Dec. Hearing No. 99400669AP (LIRC Aug. 3, 1999).

The employer simply told the employee on November 17 that it would look for something else for him. The employer did not present evidence at the hearing of the number of suitable jobs the employer actually had available during the period in question, and the length of time the employee actually would have had to have waited before being offered one of those jobs. The employer did not present credible evidence to establish that that it actually had a foreseeable assignment for the employee on November 17, 2003.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.



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