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

JOHN C WABNITZ, Employee

OSHKOSH PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03404679AP


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 in week 48 of 2003, if otherwise qualified.

Dated and mailed July 20, 2004
wabnijo . usd : 150 : 1  ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision contending that the employee should not be eligible for unemployment insurance benefits in week 48 of 2003. Initially, the petitioner argues that the employee should be denied unemployment benefits in that week because there was no change in the employment status and the employee was not "unemployed." While it is true that the employee did perform some services for the employer in week 48 of 2003 and there was no separation of employment, that does not automatically bar a claimant from eligibility for benefits. A claimant may be eligible for partial unemployment benefits under Wis. Stat. § 108.05(3).

The petitioner's next argument is that the employee should not be eligible for unemployment benefits because he was a "school year employee" and had reasonable assurance of performing similar services after the break as he had before the break. It is an employer's burden to establish that an employee has reasonable assurance. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999). Essential to determining whether the provisions of reasonable assurance apply under Wis. Stat. § 108.04(17), is the issue of whether the employee is a "school year employee" within the meaning of Wis. Stat. § 108.02(22m). Petitioner asserts that the employee was a "school year employee" simply because he did not perform services on a year around basis. To be a "school year employee" one must perform services for an educational institution under an employment contract that does not require performance of those services year round. Ashleson et al v. LIRC and CESA NO 11, 216 Wis. 2d 23, 32; 573 N.W.2d 554 (Ct. App. 1997). In Suprenand v. Marine Park Vocational Technical & Adult Education District, UI Dec. Hearing No. 02000535FL (LIRC September 19, 2002), the commission found an educational worker who worked 47 weeks of the year was not "a school year employee" because the unemployment was not tied to any customary vacation or between terms, the worker was not restricted to working during the school year and was not off work due to the employer's summer, holiday, or other customary break period.

In this case, the employer is a school district but the employee's services are not tied to the school district in an educational capacity. Instead, the services at issue, the officiating of adult basketball and adult softball games are for the employer's recreation department. The employer conceded that municipalities typically operate such adult recreation programs. Further, the employee's services for the recreation department are not tied directly to the school year but run from November to August. Thus, the commission agrees with the administrative law judge that the employee is not a "school year employee" within the meaning of Wis. Stat. § 108.02(22m) and the appeal tribunal decision is affirmed.


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uploaded 2004/07/27