SHARON E WIMES, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

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:

The employee worked in temporary assignments for the employer, a staffing service. The last day she performed work for the employer was February 27, 2004 (week 9).

The issue is whether the separation was a quit or a discharge, when it occurred, and whether it occurred under circumstances which would permit the payment of benefits.

The employee worked about six months in her first assignment for the employer, a temporary employment agency. This assignment was as a bindery "pocket feeder" at Arandell Corporation in Menomonee Falls. The employee drove her car to this assignment. On January 23, 2004, the employee was told that she was being laid off due to lack of work. On January 24, 2004, the employee's car blew a head gasket, which rendered it inoperable, and she did not have enough money to pay for repairs.

The employee returned to work for Arandell on February 15, 2004. Although her car was not yet repaired, her mother drove her to work.

This assignment at Arandell ended on February 27, 2004, due to lack of work. It appeared at that time that Arandell would be requiring the employee's services again within a brief period of time. As a result, the employer gave her a 7-day work assurance. When Arandell did not have work within that 7-day period of time, the employer gave her another 7-day work assurance. On March 10, 2004, when Arandell still did not have work for the employee, the employer offered her an assignment at CCI in Hartland. The employee told the employer that she did not have transportation to Hartland and refused the CCI assignment as a result.

The commission takes administrative notice of the fact that CCI was located approximately 27 miles from the employee's home and Arandell approximately 5 miles. In the employee's labor market, workers employed in positions similar to the CCI position offered the employee customarily travel 13.16 miles.

The first question is when the employment relationship ended.

The test to determine whether an employment relationship continues hinges on the credibility of the assertion that the temporary help employer actually had a foreseeable reassignment for the laid-off employee. May v. Cornwell Personnel Associates Ltd., UI Hearing No. 03611995MW (LIRC July 15, 2004); Jones v. Seek, Inc., UI Hearing No. 99601034 (LIRC July 6, 1999); Smith v. Cornwell Personnel Associates Ltd, UI Hearing No. 03608179MW (LIRC May 27, 2004); Zenil v. Seek, Inc., UI Hearing No. 02403573AP (April 10, 2003); Reid v. Seek, Inc., UI Hearing No. 01401251AP (LIRC Nov. 21, 2001); Wood v. Seek, Inc., UI Hearing No. 00601552MW (LIRC May 26, 2000); and Sundelius v. Aerotek, Inc., UI Hearing No. 99400669AP (LIRC Aug. 3, 1999). Here, unlike the fact situation in May, supra, for example, where the employer simply told the employee that it would look for something else for him, the employer had a reasonable expectation that Arandell would be calling the employee back to work in the near future, and, when it learned, after a period of 12 days, that Arandell would not be doing so, offered the employee another assignment. As a result, the commission concludes that the employment relationship continued until March 10, 2004, when the employee quit when she was offered but refused an assignment of work at CCI in Hartland. It should be noted that the employee would be eligible for benefits during this period of layoff.

The question then is whether the circumstances justify applying an exception to the quit disqualification, and, specifically, whether the offer of work at a more distant location satisfied the labor standards exception set forth in Wis. Stat. § 108.04(7)(e), or provided good cause attributable to the employer for the employee's decision to end the employment relationship pursuant to Wis. Stat. § 108.04(7)(a).   Even if the CCI assignment were considered new work and subject to the labor standards exception, commuting distance, i.e., the only element of the assignment at issue here, is not considered a labor standard (Jones v. Adecco North America LLC, UI Hearing No. 02008397JV (LIRC Sept. 18, 2003)), and, as a result, this exception to the quit disqualification would not apply.

In regard to the remaining exception, the employee must establish her reason for refusing the CCI offer (Jones, supra.), and that this reason satisfied the good cause attributable standard. It is a reasonable inference from the record that the employee refused the CCI assignment primarily because of the commuting distance. The terms of the relevant employment contract are too imprecise to compel a conclusion that the employee ever agreed to travel this distance to assignments. The commission concludes that this distance, which was twice the distance workers in the employee's labor market customarily travel to perform comparable work, provided good cause attributable to the employer for her refusal of the CCI offer.

The commission therefore finds that in week 10 of 2004, the employee terminated her work with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), and accordingly is eligible for benefits, if otherwise qualified.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 9 of 2004, if otherwise qualified.

Dated and mailed August 17, 2004
wimessh . urr : 115 : 1   VL 1025  VL 1015.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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